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The 
INTERNATIONAL LEGAL STATUS 

of the 

KWANTUNG LEASED TERRITORY 



The 
INTERNATIONAL LEGAL STATUS 

of the 
KWANTUNG LEASED TERRITORY 



BT 

C. WALTER YOUNG, M. A., PH.D. 



JAPAN'S JURISDICTION AND INTERNATIONAL 
LEGAL POSITION IN MANCHURIA 



BALTIMORE: THE JOHNS HOPKINS PRESS 

LONDON: HUMPHREY MILFORD 

OXFORD UNIVERSITY PRESS 

1981 



COPYRIGHT 1931 BY 

C. WALTER YOUNG 

All rights reserved- no part of this 

book may be reproduced in any form 

without permission in writing from 

the author. 



To 

Westel W. Willoughby, LLB., PA. P., 
Professor of Political Science 

at 

The Johns Hopkins University, 

This Volume Is 

Respectfully 

Inscribed. 



" General propositions do not decide concrete cases." 

Mr. Justice Holmes' dissenting opinion in Lochner v. 

New YorTe (1905). 198 U. S. 45, 25 Sup. Ci 539. 



GENERAL PREFACE 

The three volumes, of which this is one, include the 
following titles: Japan's Special Position in Man- 
churia, The International Legal Status of the Kwan- 
tung Leased Territory, and Japanese Jurisdiction m 
the South Manchuria Railway Areas. These to- 
gether comprise a series, under the general title : 
Japan's Jurisdiction and International Legal Posi- 
tion in Manchuria. Although they have been written 
simultaneously, and may be regarded as a unity for 
the purpose of analyzing the international legal posi- 
tion of Japan with respect to Manchuria, each vol- 
ume is in itself a unified whole, a separate book. 

These studies are not history. They are rather 
studies in politics and international law. The ma- 
terials of the historian have been drawn upon only 
to furnish the essential stuff for a background, and 
to present the sequence of events which is essential 
to a delineation, description and evaluation of the 
particular categories of politics or law dealt with. 
Facts, then, which may be of interest or essential 
to the historian, may have had to be intentionally 
excluded from this study. The methods of dealing 
with the facts naturally have been those rather of 
the student of politics than of history. However 
this may be, the sequence of historical events has 
been followed, where possible, so that the very de- 

vii 



Vlll GEBTEBAL PEEFACE 

velopment of the .problems of legal status and right, 
whether with respect to the Kwantung lease, the 
South Manchuria Kailway, or the general position of 
Japan in Manchuria, may be traced through from 
their origins to the present. 

Nor are these studies in the field of economics. 
But, as economic, like historical, facts are intimately 
bound up with those of politics and the law as, for 
example, in the question of the prior right of foreign 
financiers to furnish the capital under a specific 
loan contract for the construction of a Manchurian 
railway it will be seen that these volumes, espe- 
cially the one dealing with Japan's claims to a " spe- 
cial position " in Manchuria, are alive with material 
of interest to the student of international economic 
relations. Viewed from the point of view of legal 
rights and status, much will be found here which 
make up the ground plan, the rights, the restrictions, 
the avenues through and around which trade and 
capital enterprises have developed in Manchuria. 

Finally, these are not, primarily, studies in diplo- 
macy, foreign policy, or colonial administration. 
Particularly is this true of the volume dealing with 
the international legal status of the Kwantung leased 
territory. This is a subject which lends itself to 
legal analysis, in spite of its reputed confusion in 
international law. Japanese administrative rights 
here and in the South Manchuria Eailway areas are 
studied only in so far as such description may have 
utility in clarifying the fundamental questions of 



GENERAL PBEFACE ix 

legal right, under treaties and .international law, 
which are here considered to the exclusion of ques- 
tions of administrative organization or the wisdom 
or unwisdom of administrative policies. 

But international legal situations would be de- 
prived of both interest and clearness were they en- 
tirely divorced from the realities of diplomacy. The 
question of intent may be the major subject of a 
particular inquiry as that of China's intent in 
leasing Kwantung to Eussia, and permitting its 
transfer to Japan and, to answer such a problem 
satisfactorily, history and diplomacy must be drawn 
upon for any adequate interpretation. To treat the 
question of the validity of the Sino-Japanese treaty 
and notes of 1915, which extended the Kwantung 
lease period to ninety-nine years, without some con- 
siderable attention to the exceptional diplomacy 
which attended the signing of those agreements, 
would produce conclusions of little worth a f ormal- 
istic dialectic in which no jurist would indulge. 

Diplomacy, the complex negotiations affecting 
Japan's position in Manchuria, even the asides and 
the overtones of policy, revealed at times by inci- 
dents, actions, opinions, perhaps even attitudes 
which are the psychological stuff that give new mean- 
ing, real meaning, to terminology with which we must 
here deal, these cannot be divorced from a legal 
analysis. 

Japan's " special position " in Manchuria is a far 
different thing in the mind of a Japanese, who may 



X GENERAL PREFACE 

not have concerned himself with the question of 
Japan 's legal rights in Manchuria, than it is to those 
who view that terminology shorn of its aura of his- 
torical and patriotic associations. But the possible 
value and the limitations of our approach here is sug- 
gested by this situation. If a defense of that ap- 
proach or method were necessary, it would be found 
in the terse language of that eminent English pub- 
licist in international law, the late Professor T. J. 
Lawrence, when he wrote on leased territories in 
China: " As a rule words describe things. In diplo- 
macy they are sometimes used to describe well, 
other things 1 " These " other things " are very fre- 
quently omitted from .treaties and official corre- 
spondence but they may be what the master in 
chancery would be quite willing to regard as admis- 
sible testimony. 

Inevitably, especially in dealing with Japan's 
claims to a ." special position ", to " special rights 
and interests ", and to " vital interests " in Man- 
churia, it has been impossible to avoid some judg- 
ment or perhaps some presentation of a situation 
which will influence the reader's judgment as to the 
right or wrong of a particular state policy* The 
author has been cautious not to abuse that discre- 
tion which he has had to exercise in presenting such 
materials. Nevertheless, the manner in which he 
has exercised that discretion is a proper subject for 
criticism by the impartial reader. A caveat, which 
may, perhaps, be superfluous if the contents of one 



GENERAL PREFACE XI 

of these volumes be tempered with that of another, 
needs to be emphasized here : whatever impressions 
may be gained as to the author's views on the ques- 
tions of state policy involved may be entirely inade- 
quate reflections of the author's real views on these 
very questions. In fact, there are numerous such 
questions pertaining to Japan's position in Man- 
churia, and dealt with at length in these volumes 
from a legal point of view, which, if the author's 
purpose were to appraise foreign policy as such, or 
pass judgment on the ethical considerations, the 
questions of intrinsic justice, or even of expediency, 
would have had to have been developed in a manner 
far different, and to other conclusions, than are even 
suggested in these volumes. 

The author can lay no claim to having arrived at 
the maturity of judgment which would enable him 
to claim complete consistency in the application of 
his method to so dynamic an international situation 
as exists in Manchuria. This field is so primed with 
a special interest for him that the dangers of dis- 
tortion of what should be a dispassionate and impar- 
tial weighing of the facts against the rules of law ap- 
plicable are many. He has been working in an un- 
charted frontier, where rules of international law 
are as frequently honored in the breach as in the ob- 
servance. " Manchuria and International Law! " 
what bedfellows ! To introduce one to the other may 
not always produce congenial consequences. 

International law is itself full of wide gaps. There 
is frequently an absence of universality of accep- 



Xll GEBTEBAL PBBFACB 

tance of even basic principles. At times, the prin- 
ciple which has widest acceptance by states and 
publicists alike may fall short of producing justice 
in a given circumstance. Ethical standards may 
suffer from the rigid application of a generally ac- 
cepted legal rule. Are we then to cast aside the 
rule of law? Is it not essential rather to state the 
rule of law, then apply it, and remain an honest in- 
terpreter of the law, than to attempt to create a 
new rule of law, founded on nothing but expediency? 
There is, too, a broader question of expediency 
involved, for international law itself may be at stake. 
International law, like all law, is constantly de- 
veloping. It grows to the ideal, but never can reach 
it If the reign of law is to survive, and order re- 
main in international relations, the task of the in- 
terpreter of international law is to inquire as to 
what it is at a particular time, and not to presume 
for himself the right to so interpret it as to suit his 
private views as to expediency in applying it to a 
situation which he, were he a diplomat, might wish 
to deal with quite otherwise. Here, in Manchurian 
situations, we shall find numerous illustrations of 
cases where international legal rules and principles 
have been badly strained to suit the national pur- 
poses of particular states. 

This is not to say that legal situations in Man- 
churia here treated would not possibly have to be 
interpreted very differently after a decade or two. 
The law itself will change. Old issues of practical 



GEtfEBAL PBBFACB XU1 

diplomacy may have to be reopened. For the present, 
however, it is well to draw the line as sharply as pos- 
sible between the law as it now exists and the ideal 
which will bring complete justice in given situations. 
Diplomacy itself will have to deal with such situa- 
tions, and may well have to find solutions on the 
basis of wise policy. Legal rights need clearly to be 
understood and respected; they may be given up, 
and, perhaps, must be given up, in the interest of 
the very state who may have a perfectly valid legal 
claim to them. It is, nevertheless, essential, partic- 
ularly in these Manchurian situations, to know the 
precise limits of legal rights claimed and justifiable 
before diplomatic negotiation can proceed with prac- 
tical solutions. There is need, too, to know when 
rights claimed are not justifiable ; to know when ac- 
tions criticized as taken illegally, are actually justi- 
fiable under the treaties and under international law. 
There has been far too much assertion and counter- 
assertion as to Japan's treaty rights in Manchuria, 
without much attention to the verities which, in most 
cases, can be accurately described. 



In the several years which the author has required 
to assemble the materials presented in these volumes 
he has had the benefit of close association with scores 
of Japanese and Chinese officials, administrators, 
technicians and scholars in Manchuria, and with 
some who, occupying responsible posts elsewhere, 



XIV GENERAL PREFACE 



have had intimate kowledge of Manchuria. The gen- 
erosity with which these individuals have cooperated 
in furnishing otherwise unavailable data, including 
much that has not previously been published even 
in their own languages, has made this work possible. 
No amount of mere residence in Manchuria could 
have supplied that need, though it may be that some 
considerable residence there has enabled the writer 
to develop those friendships and intimacies without 
which his investigations must necessarily have been 
regarded to put it quite frankly as pestiferous. 

Unfortunately, it is quite impossible here even to 
mention the many Japanese and Chinese who have 
furnished the writer with valuable materials for 
these studies. They will know, perhaps by chance 
reference to portions of these volumes, how much the 
author may be indebted to them for materials, and 
may take that dependence as an expression of the 
author's gratitude to them. 

In the nature of the case since these studies, and 
especially one volume, have to do with the South 
Manchuria Railway the many officials and staff 
members of the South Manchuria Railway Company, 
especially in Dairen, have been of the greatest assis- 
tance. The author has time and again imposed upon 
their more important duties and has received in re- 
turn unfailing courtesy and consideration. I know 
of no other private or public institution, at all simi- 
larly situated, which could have been approached 
with greater assurance that my requests would be 
received with efficiency and generosity. Why the 



GENERAL PBEFACE XV 

author, through four distinct administrations which 
have had the railway in charge, has been so liberally 
treated will, no doubt, be answered differently by 
various readers of these volumes. To the author 
himself, however, this generosity remains somewhat 
of a puzzle. To Kwantung Government officials, also, 
the author wishes here to express his gratitude for 
their cooperation in supplying him with essential 
materials not otherwise available. 

Materials of the Foreign Intercourse Office, main- 
tained by the Chinese Government at Mukden, have 
been placed at the writer's disposal by Chinese 
friends. Some have been supplied by Chinese schol- 
ars associated with Northeastern University at Muk- 
den; others, by officials. In the nature of the case, 
many of these materials have had bearing upon those 
most contested questions, of principal concern in 
contemporary politics, which have to do with the 
jurisdiction and activities of the Japanese railway 
guards along the South Manchuria Railway areas, 
or have bearing on the administration of the so- 
called " railway towns ". 

Under these circumstances, it must be apparent 
that it is with no intention to overlook these many 
favors that the author takes this occasion to express, 
by specific reference, his indebtedness to his revered 
professor, Dr. W. W. Willoughby, of the Johns 
Hopkins University, whosie personal counsel has 
been hardly less valuable than the materials which 
the author has been permitted to draw from the sev- 



XVI GENERAL PREFACE 

eral scholarly books of this distinguished student of 
constitutional and public law, as well as of the Far 
East. To thank him for his generous preface is not 
to admit that his concluding paragraphs are at all 
defensible! 

To Dr. John V. A. MacMurray, formerly Ameri- 
can Minister to China, for many years in the service 
of the Far Eastern Division of the Department of 
State, and now head of the Walter Hines Page 
School of International Relations at the Johns Hop- 
kins University, the author 's thanks are due for 
suggestions and valuable criticism. No student of 
Far Eastern politics and diplomacy can overlook his 
well-known compilation of China treaties and agree- 
ments. He must rather depend constantly upon it. 

To those who have labored through the galley 
proofs, the author wishes here to express his in- 
debtedness for suggestions and criticism. Mr. C. 
Gordon Post, instructor in political science at the 
Johns Hopkins University, has taken the responsi- 
bility for preparing the indices of these volumes and 
has executed his task with care and the exercise of 
a certain judgment for which his training has quali- 
fied him. For the tedious task of reading the " first 
gaUeys ", as weU as for her tolerance in listening to 
the author's defense not always impregnable of 
his original manuscript, and for suggestions as to 
revision, especially in the interest of clarity of ex- 
pression, the author wishes here to express his grati- 
tude to Gladys Hildreth Young. 



GEKBEAL PREFACE XV11 

Whatever may have been the degr.ee of dependent 
of the author upon certain materials, generously 
made available in English translations from Jap- 
anese and Chinese originals, he is in a position to 
accept fall responsibility for such use as has been 
made of them in these studies. For the material con- 
tent of the volumes, the interpretations presented, 
and the conclusions drawn, he must assume like 
responsibility. 

0. WALTBB YOTTKG 
THE DUNDEE ATHVTR 
BALTIMORE 
July, 1931 



FOREWORD 

BY 
W. W. WlLLOUGHisx 

The Washington Conference of 1921-1922 marked 
the beginning of a new era in the history of China's 
dealings with the other Powers. For the first time 
China was then enabled to sign treaties and other 
agreements which secured benefits to herself. Prior 
to then she had been compelled to grant rights to the 
other Powers. Since then she has continued her 
efforts to free herself from the conventional limita- 
tions upon the free exercise of her sovereign powers, 
with the result that the time does not appear far dis- 
tant when she will be, in almost all respects, mis- 
tress within her own political household. 

However, it is clear that it is within the Man- 
churian provinces that she will find her greatest 
difficulty in bringing about a status that will be com- 
pletely satisfactory to herself, for it is there that 
Japan has developed such extensive economic in- 
terests that she is unwilling to look forward to the 
time when the maintenance of these interests will 
be wholly subject to the political control of China. 
Therefore, although, in a number of respects, Japan 
has yielded to China's insistent demands for a 
greater freedom from the unilateral limitations that 

six 



XX FOBEWOED 



have been imposed upon her sovereign action, she, 
Japan, has jealously guarded those treaty rights, 
which, in her opinion, make more secure, or, perhaps, 
more ample, these economic interests which she has 
in the Manchurian area, and which, she has several 
times declared, are vital to her own national life. 

At the same time, it is to be observed that some 
of the more important political or jurisdictional 
rights in Manchuria to which Japan now lays claim 
are based upon the treaties and agreements which 
resulted from the " Twenty-one Demands " which 
Japan made upon China in 1915, and which, because 
of the nature of those demands, and of the circum- 
stances under which they were made, the Chinese, 
though compelled to sign them by a formal ultimatum 
from Japan, have consistently declared to be with- 
out a moral basis, and, therefore, subject to be disre- 
garded by them when the opportunity to do so pre- 
sents itself. 

A further complicating factor in the Manchurian 
situation is that provided by the Eussian interests. 
At the present time, leaving aside the situation in 
Outer Mongolia, these relate principally to the Chi- 
nese Eastern Eailway. In addition to this railway 
problem, which is an exceedingly complicated one, 
there is no assured confidence upon the part of either 
China or Japan that, when Soviet Russia has brought 
her domestic household into what would appear to be 
a permanently satisfactory order, she will not again 
attempt to extend her political control over the 



FOKBWOBD XXI 

northern parts of Manchuria, or even, under favor- 
ing circumstances, over southern Manchuria, and 
thus not only trespass upon China 's territorial sov- 
ereignty but again present that threat to Japan 
which, in 1905, led to the Eusso-Japanese War. 

It is clear, then, that here in Manchuria exists a 
situation which can easily lead to serious interna- 
tional conflict. This being so, it is of the utmost im- 
portance that the facts of the situation should be 
made clear to the world. In the present volume, 
which is one of a series of three, Dr, Young has 
sought to do this so far as the jurisdictional rights to 
which Japan lays claim in Manchuria are concerned. 
It is a fortunate fact that one so eminently qualified 
should have set himself to this task. By his pre- 
viously published writings, Dr. Young has gained for 
himself a high reputation as a scholar in this field. 
More than this, he has shown ian ability to deal in an 
impartial way with problems which, to one less ob- 
jectively minded, offer abundant opportunity for 
emotional and, therefore, less balanced treatment. 
Also, it is to be added, that Dr. Young has not con- 
tented himself with the information obtainable from 
official documents and other printed sources, but has 
made repeated visits to China and Japan, and has 
travelled extensively in Manchuria in order that he 
might see conditions at first hand, and, by personal 
interviews with leading officials, obtain a truer in- 
sight into the significance of these conditions than 
could be derived from an examination of printed 
documents or from formal official declarations. 



3CX11 FOBEWOBD 



It is the considered opinion of the writer that these 
three volumes constitute one of the most important 
contributions which have been made during recent 
years to the scientific study of political conditions in 
the Far East. It is to be hoped that Dr. Young will, 
in the near future, carry his studies of the Man- 
churian problem into other than the purely jurisdic- 
tional field, and provide scholars with an evaluation 
of the essential economic, social and political in- 
terests which are involved, as well as with a de- 
tailed account of the manner in which the jurisdic- 
tional rights in Manchuria have, in practice, been 
exercised and of the results that have flowed there- 
from. One may even hope that Dr. Young will 
eventually feel justified in departing from the purely 
scientific and objective field, and enter that of the 
statesman in order to express his own matured and 
factually fortified judgment as to what should be the 
Manchurian policies of all the nations concerned. 

W. W. W. 

THE JOHNS HOPKINS UNIVEBSITY 
July, 1931 



EERATA 

Page 156, last line: for "Dr. C. T. Wang", read Dr. C. H. 
Wang (Wang Chung-hid) ; also same in foot- 
note 4. 

Page m, line 12: for "Dr. C. T. Wang", read Dr. C. H. 
Wang. 

Page 349, in Index: for "Wang, C. T.", read Wang, C. H. 



INTRODUCTION 

The Kwantung leased territory in southern Man- 
churia, China, has been in Japanese possession since 
the Russo-Japanese war, or, in other words, for over 
a quarter century. When this lease was obtained by 
Russia in 1898, and until the close of the Russo-Jap- 
anese war, its identity was almost entirely eclipsed 
by the world notoriety of its then principal city, Port 
Arthur, that Kronstadt of North China which was 
the scene of the awful carnage attending the storm- 
ing and capture of its heights by the Japanese troops, 
first, in the war against China in 1894-95, and then 
in the Russo-Japanese war in 1904-05. Since the 
Russo-Japanese war, however, Port Arthur has 
dwindled almost into insignificance: it is no longer 
a fortified city of importance, and long since has 
ceased to be a Japanese naval base. 

The importance of the Kwantung leased territory 
for the last twenty years has been rather the result 
of two considerations: it commands the approach 
from the sea into southern Manchuria, and retains 
a strategic value especially because the southern ter- 
minal of the South Manchuria Railway is located 
within it, that is, at Dairen; secondly, it may prop- 
erly be regarded as the point d'appui of southern 
Manchuria and the sea for commercial purposes. 
Dairen, known by the Chinese as Talien, where in 



2L2LV1 n^TBODTTCTION 

the closing years of the last century the Russians 
reared the mushroom town of Dalny, " The Far 
Away City ", has risen to a position of commercial 
importance in Eastern Asia which leaves it today 
unrivalled in Manchuria as an entrepot for foreign 
imports to the hinterland. Under efficient Japanese 
administration, the city of Dairen has become a city 
of over a hundred thousand population, superbly 
equipped as a harbor for handling world ocean-borne 
traffic, with the result that Dairen today is the prin- 
cipal port of shipment for the produce of Manchuria. 
From a position of insignificance in 1897, Dairen 
has grown to one of world importance, its total for- 
eign trade today being second only to that of Shang- 
hai along the entire China coast. Dairen is the base 
of commercial operations of the Japanese in Man- 
churia; Port Arthur is but the seat of the govern- 
ment of the Kwantung leased territory, or Kwantung 
Province, as it is known under Japanese consti- 
tutional law. 

The Kwantung leased territory, commonly re- 
ferred to as " The Liaotung Peninsula " which 
latter term properly should be used to apply to a 
somewhat larger region has, then, an importance 
which is not to be measured either by its size, or by 
the intrinsic truth of the commentary of that in- 
trepid traveler, Abb6 Hue, who, during the middle 
of the nineteenth century, gave this region " dis- 
tinguished rank for the aridity of the soil ". Man- 
churia is its granary, and these, the Three Eastern 
Provinces of China, are rich, now and potentially. 



INTBODUOTION XXVli 

In this small volume an attempt has been made to 
deal exclusively with the international legal status 
of the Kwantung leased territory. Leased territories 
as such are uncommon in contemporary interna- 
tional life. Time was, however, when this and the 
several other leased territories in China, including 
Kiaochow, Weihaiwei, Kowloon and Kwangchow, 
had much more than esoteric importance. They were 
the loci of the naval bases which, in the last century, 
European powers acquired from China along her 
shores. Of these, Kwantung survives as of even 
greater importance today than formerly. These con- 
siderations give Dairen and even Port Arthur a 
new world significance. Around them revolve the 
complex separate orbits of problems which, in their 
totality, make up the Japanese phase of the so-called 
" Manchurian Question ". 

The purpose of this volume one in a trilogy 
which deals also with Japan's Special Position in 
Manchuria and with Japanese Jurisdiction m the 
South Manchuria Railway Areas is to present an 
analysis of the status of the Kwantung territory in 
international law and under the treaties by which it 
came to be possessed by Japan. As such, it neces- 
sarily is a somewhat technical study, of interest to 
students of international law, as well as to those who 
interest themselves in the problems of Eastern Asia. 
By the former, it may be accepted as the first attempt 
to deal exhaustively with one particular leased terri- 
tory in China, a study which, like studies of the in- 



ixxviii 

ternational legal status of the mandates under the 
League of Nations, deals necessarily with one of the 
exceptional situations of international law, and, 
finally, as an attempt at interpretation of a legal 
situation which places emphasis upon the realities 
out of which international law itself must develop. 
To the general student of Far Eastern politics and 
diplomacy, on the other hand, this study may have 
some special value in supplying a body of technical 
and historical data, organized, interpreted and ap- 
praised, which, if the aims of the author have been 
achieved, will caution the student, the historian and 
the journalist to _be more mindful of the use of words 
to describe things than has been the case in the past. 

0. W. Y. 



CONTENTS 

CHAPTBB PAGE 

GENERAL PREFACE vii 

FOREWORD BY W. W. WILLOUGHBY xix 

MAP, OF THE KWANTUNG LEASED TERRITORY XXIV 

INTRODUCTION xxv 

I. SOVEREIGNTY AND JURISDIOTIONAL EIGHTS 1 

1. The Necessity of Distinguishing Sover- 
eignty and Jurisdictional Eights 1 

II. THE ORIGINAL JURISDIOTIONAL EIGHTS OF 

EUSSIA . 18 

1. Conventional Basis for the Eussian Eights. 18 

2. The Actual Exercise of Control by the 

Eussians: 1898-1904 2? 

III. WAR, NEUTRALITY AND THE LEASED TERRITORY . 38 

IV. THE ACQUIRED JURISDIOTIONAL EIGHTS OF 

JAPAN 50 

1. The Nature of the Japanese Eights 50 

2. Japanese Jurisdiction over Chinese Besi- 

dents '. 60 

3. Position in the Japanese Empire 66 

V. EXTRATERRITORIALITY AND THE KWANTUNG 

LEASE 74 

VI. THE STATUS OF KWANTUNG IN INTERNATIONAL 

LAW 97 

1. The Absence of Analogous Situations in 

China and Elsewhere. 97 

2. The False Analogy of Kwantung with 

Leases in Private Law 105 

VIL THE STATUS OF KWANTUNG IN INTERNATIONAL 

LAW 125 

1. The Rule of Construction of Lease Con- 

ventions 125 

2. The Beal Status of the Kwantung Lease 

in International Law. 131 



CONTENTS 

VIII. THE EXTENSION OF THE LEASE PERIOD IN 1915 . 153 
1. The Legality of the Sino-Japanese Treaty 

and Notes of 1915 153 

IX. CHINA'S RIGHT TO RECOVER THE LEASE 184 

1. The Principle of Rebus Sic Stantibus 185 

2. Application of Rebus Sic Siantibus to the 

Kwantung Lease 201 

X. DIPLOMATIC NEGOTIATION AND POLITICAL 

MEANS OF SOLUTION 208 

APPENDIX A. TEXTS OF EXCHANGE OF NOTES OF 1915. . 228 

BIBLIOGRAPHY 235 

INDEX 243 



THE mTERNATIONAL LEGAL STATUS 

OF THE KWANTUNG LEASED 

TERRITORY 



CHAPTER I 

SOVEREIGNTY AHTD JUBISDIOTIONAL BIGHTS 

1. The Necessity of Distinguishing Sovereignty 
and Jurisdiction^ Rights. The controversy among 
publicists in international law as to the situs of sov- 
ereignty in mandated territories under the League 
of Nations has directed attention anew to the 
assumptions underlying the rival positivist and 
" natural law " schools as to the nature of sover- 
eignty or independency in international relations* It 
has given new emphasis to the basic problem under- 
lying all international law its source and sanctions. 
This controversy has almost completely obscured 
that which, during the opening years of this century, 
was motivated by the problem of leased territories, 
especially the China leases. 

Curiously enough, however, the still unsettled con- 
troversy over sovereignty in the mandated territo- 
ries has caused the publicists to tread with pioneer- 
ing steps across frontiers which, in certain situations, 
were explored by those who attacked the prob- 
lem of leased territories. But these latter explora- 
tions were but partially productive. In fact, our 

heritage from the early twentieth century discussion 

i 



2 SOVEREIGNTY AISTD JtTMSDICTIONAL BIGHTS 

of the international legal status of leased territories 
in China is a questionably valuable offering. Great- 
est unanimity among the publicists appears in their 
characterization of these leases as " disguised ces- 
sions " a conclusion which, particularly in the light 
of subsequent historical fact surrounding the actual 
return of the Kiaochow and Weihaiwei leases to 
China, must be declared to be both invalid in strict 
law and irreconcilable with the practical facts of 
realistic diplomacy. 

Central among the issues raised by the problem 
of sovereignty with respect to both mandated and 
leased territories is this one: Does the possession 
of sovereignty carry with it an exclusive right to ex- 
ercise jurisdiction in the territory over which that 
sovereignty is conceded? Otherwise stated, is the 
monist conception of the state tenable in the light of 
such apparent exceptions to the rule as are presented 
by the leased territories in China where political 
functions are alienated to foreign states? The very 
location. of sovereignty is itself in controversy in the 
case of the mandated territories under the League of 
Nations. This has been the case, also, with leased 
territories, but, as this study will endeavor to indi- 
cate, the problem of the actual situs of sovereignty 
over leased territories need not have been as com- 
plicated as the publicists actually made it. 

Whether, with respect to mandated territories, we 
must now conclude that the time has come when 
conceptions of sovereignty, irreconcilable with the 



SOVEREIGNTY AND JURISDICTIONAL EIGHTS 3 

monist view, must be accepted by the realistic pub- 
licist, is not within the scope of this study. 1 Our 
concern here is solely with the international legal 
status of leased territories, particularly as evidenced 
by the status of one, the Kwantung lease in Man- 
churia. The object, then, of this study is rather to 
ascertain the real status of the Kwantung lease as 
a practical problem of contemporary international 
law and diplomacy than to develop the inferences as 
to those general concepts of sovereignty which will 
inevitably, but always incidentally, have to be treated 
in context. 

Leased territories, especially of the type properly 
described as international political leases, have long 

1 Professor Quincy Wright has written especially to this point in 
his recent excellent work on the mandates. His realistic approach is 
suggested by his statement that " convenient as territorial sovereignty 
may be, it is neither necessary nor is it a condition actually existing 
in every part of the world ". (Mandates under the League of Nations, 
p. 268.) We have, in fact, a state system which reveals " a tropical 
luxuriance of political land legal organization, competence, and 
status ". (p. 276.) Professor Wright declines to accept the " munici- 
pal-law " point of view of international law, and concludes that 
sovereignty in international law is capable of division, that sover- 
eignty " is the capacity to have jural relations with other sovereigns ", 
and that, when the jural relations of states be studied in practice, it is 
evident that various states possess sovereignty in varying degrees, 
(p. 2S6.) Dr. Wright clearly rejects the monist and analytical jurist's 
conception of sovereignty as a thing indivisible. He admits " divided 
sovereignty" over a state, (p. 300.) With respect to mandated 
territories, and expanding his earlier view, he concludes that what 
actually exists with respect to certain mandated territories at least 
is that there is "joint sovereignty", rather than "divided sov- 
ereignty ", and that this sovereignty is jointly held by the mandatory 
and the League itself, (p. 337.) Whether it is, in fact, necessary, 
to posit " divided sovereignty " for a realistic description of the legal 
status of leased territories in China will be dealt with in context later. 



4 SOVBBBIG3STTY A1STD JUBISDIOTIOKAL BIGHTS 

presented to students of international law situations 
which have been considered highly puzzling and 
somewhat anomalous. They are, to be sure, distinct 
exceptions to the rule that the state which possesses 
sovereignty over a specific territory also has the 
right in practice to conduct political administrative 
functions and establish its courts of law in the area. 
Sovereignty, viewed as supreme legal competence, 
necessarily has different connotations when viewed 
from the municipal law or the international law point 
of view. 2 Viewed from the international legal angle, 
sovereignty may well be considered as the ultimate 
right to dispose of territory or to control its eventual 
destiny. This ultimate right to dispose of territory 
should not be confused with the actual exercise of 
jurisdiction within a given territory : the latter, how- 
ever inclusive, may be, juristically speaking, an ex- 
ercise only of delegated or conferred rights, the real 
source of which, must be traced to the state which 
has sovereignty itself. It is confusion as to this situ- 
ation which led the publicists of the early twentieth 
century to confound the situs of sovereignty with 
the actual exercise of administration in the leased 
territories in China. Because all, or practically all, 
jurisdictional rights over the territory were in fact 

2 " .... The idea of Sovereignty, as it is found in constitutional 
law, can find no proper place among international conceptions." 
(Willoughby, W. W. The Fundamental Concepts of Pubttc Law, 
p. 283.) This would seem in itself to be conceded by Professor Quincy 
Wright, but the inferences then to be drawn place him in opposition 
to the conclusions of Dr. Willoughby. (TWA, pp. 285 8.) 



SOVEREIGNTY AND JURISDICTIONS RIGHTS 5 

waived, for the period of the lease, in favor of the 
.essee state, they concluded that the reservation of 
sovereignty to China, the lessor, was a fiction, of 
aeither legal nor practical importance. Here was 
srror. 

This reservation of sovereignty to China, the 
lessor state, was, in the original lease conventions of 
1898, in some cases definite, in others indefinite or 
actually not evident at all except by inference. Fail- 
ure to consider the actual texts of the lease conven- 
tions, and their variations, originally led the. pub- 
licists to deal with them as uniform situations, a 
tendency which is still evident among contemporary 
writers. The fact is that in the case of the Weihaiwei 
lease to Great Britain (July 1, 1898) there was no 
specific mention of reservation of sovereignty to 
China. 8 Great Britain was given " sole jurisdic- 
tion ", Nor was there any textual reservation of 
sovereignty to China over the Kowloon lease exten- 
sion made in the same year/ Great Britain was given 
" sole jurisdiction " over the territory, except for 
the city of Kowloon, over which the exercise of 
Chinese jurisdiction might continue only if and so 
long as it was not " inconsistent with the military 
requirements for the defence of Hong Kong ". In 
the case of the German lease at Kiaochow, China 
agreed to " abstain from exercising the rights of 

3 MacMurray, J, V. A. Treaties and Agreements with and con- 
cerning China, Vol. I, pp. 152*153. 
*lbid., pp. 130 ff. 



6 SOVEREIGNTY ABTD JXJBISDICTIOBTAL BIGHTS 

sovereignty " over the leased territory (convention 
of March 6, 1898), the wording indicating that sov- 
ereignty itself was reserved to China, the lessor, al- 
though there was no specific statement to this effect 
in the lease convention. 5 In none of these lease con- 
ventions was there any such specific statement of 
reservation of sovereignty to China as was included 
in the Liaotung lease convention of March 27, 1898, 
between China and Russia. " This act of lease, how- 
ever, in no way violates the sovereign rights of 
H. M. the Emperor of China to the above-mentioned 
territory." 6 From the context, however, and, in 
view of the broad delegation of almost exclusive 
jurisdictional authority to the lessee, Russia, it 
would seem more accurate for the convention to have 
substituted simply the term " sovereignty " for 
the " sovereign rights " of China in the sentence 
quoted. 7 

As for the extent and nature of the powers of ad- 
ministration obtained by Russia and later Japan in 
the Kwantung leased territory it is now as evident 
as in the days of Russian occupation that the author- 
ity of the lessee is, in fact, practically unlimited. Six 
years of Russian occupation (1898-1904) and a quar- 

MacMurray, Vol. I, pp. 112 ff. 

Jbw*., p. 110. 

7 The terms "Liaotung lease" and "Kwantung lease" are used 
interchangeably in this study. This leased territory was originally 
called the Liaotung lease in the Russo-Chinese convention of March 
27, 1898. During the Russian period of administration it was termed 
" Kwantiung Province " (not to be confused with Kwangtung province 
in which Canton is located), and that is the official name today, or 
"Kwanto", in Japanese, 



SOVEREIGNTY AND JTJBISDICTIOMTAL EIGHTS 7 

ter century of possession of governmental power by 
the Japanese have served to strengthen the views of 
the publicists of the time, however erroneous were 
their views as to the situs of sovereignty itself, that, 
so far as exercise of jurisdictional rights within the 
territory in lease was concerned, the lessee was al- 
most unrestricted by any limitations. Having con- 
cluded that the reservation of sovereignty to China 
was a myth, a sop to the Cerberus of China's sus- 
ceptibilities, they naturally confused these leases 
with outright cessions, dubbing them " disguised, ces- 
sions ", and placed emphasis upon the fact that the 
lessee was the de facto possessor of administrative 
rights. Allowing for minor exceptions of specific 
jurisdictional functions reserved by China in Kwan- 
tung, the general conclusions of the early twentieth 
century publicists were essentially sound as to juris- 
diction in these leased territories. 

One publicist, Professor T. J. Lawrence, a legist 
with a sense of humor as well as independence of 
judgment, addressed himself directly to the inter- 
national legal status of the Kwantung lease as es- 
tablished by the Sino-Eussian lease convention of 
1898. The result was perhaps the most lucid com- 
mentary of the period on these leased territories in 
China. Not only did Professor Lawrence raise the 
questions which puzzled his fellow publicists, and 
caution them against " old theories which fail to 
explain new facts ", but he expressed very clearly 
the view, which subsequent events have shown to be 
correct, that, whatever China's ultimate right to re- 



8 SOVEREIGNTY AND JTTBISDIOTIOKAL EIGHTS 

cover the territory, the lessee possessed, during the 
period of the lease, practically unlimited rights of 
jurisdiction. His very realistic interpretation of the 
status of the Kwantung or Liaotung leased territory 
follows : s 

"As to a lease we are familiar in our own law with the 
powers of lessor and lessee. The matter is simple enough 
when such things as a house or a flock of sheep are concerned. 
But how does it work out when we have to deal with state 
authority? Who has jurisdiction in a leased territory, the 
state which grants the lease or the state to which the lease is 
granted? Or have they concurrent authority therein? If 
jurisdiction belongs to the grantor state, what are the rights 
which have been transferred to the grantee by the lease ? If the 
grantee can exercise jurisdiction, what rights remain to the 
grantor whose sovereignty is supposed to be unimpaired? If 
both states share jurisdiction, where is the boundary line to be 
drawn between their respective spheres ? There is no limit to 
the legal conundrums that might be invented by a little in- 
genuity. But in order to solve them satisfactorily we must 
qualify the theories of jurists by considerations drawn from 
the hard facts of international intercourse. And after all, old 
theories which fail to explain new facts are themselves in 
need of modification. Law was made for men and states, not 
men and states for law. 

a Turning then to facts, we note an agreement of opinion 
among all the powers except Japan, that when once Russia had 
obtained a lease of Port Arthur, Germany of Kiao-Chau, and 
Great Britain or Wei-hai-Wei, foreign consuls in these places 
could no longer exercise the special powers granted to them 
by treaty with China. The territories in question were held 
to be under the full and exclusive jurisdiction of the states to 
which they were leased, whose authority was deemed supreme 

8 Lawrence, T. J. War and Neutrality in the For East, pp. 270-271* 



SOVEREIGNTY AND JTJBISDIOTIOlfrAL RIGHTS 9 

while the lease remained in operation. Further, we must re- 
member that the administration passed entirely to the lessee 
states, who not only carried on the government, but erected 
fortifications, established garrisons, and even dealt with 
Chinese inhabitants as resident aliens. Bearing these things 
in mind, we are forced to the conclusion that a lease in inter- 
national transactions is not the common-place and innocent 
affair we know so well in dealings with private property. It 
amounts, in fact, to a cession of the leased territory for a 
limited time, and with a strong probability that the period 
mentioned in the lease will be prolonged indefinitely if the 
lessee state finds it convenient to stay on. With regard to it, 
law and fact harmonize badly, and the difficulty arises from 
the useful diplomatic habit of veiling harsh acts with pleasant 
terms. The words which reserve the sovereignty of the lessor 
are fine phrases used for the purpose of disguising the reality 
of territorial transfer. They may be likened to the jam which 
renders palatable the child's powder, or the courteous formula 
which conceals a social rebuff. We regret our inability to 
accept the invitation we regard as an impertinence. We are 
the obedient servants of the letter-writer we wish to keep at 
arm's length. In the society of nations there are similar forms, 
and the lease is one of them. As a rule words describe things. 
In diplomacy they are sometimes used to describe well, other 
things ! " ' 

The passing of over three decades since the orig- 
inal lease to Russia has proved the wisdom of these 
words as to the extent of political authority pos- 
sessed by the lessee state. Time, however, has given 
new application to Professor Lawrence's own fine 
phrase that " old theories which fail to explain new 
facts are themselves in need of modification ", with 
the result that his conclusion as to the permanence 
of these so-called leases is itself in need of modifica- 



10 SOVBEBIGNTY AND JTJRISDICTIOtfAL EIGHTS 

tion. Moreover, the fact of the actual retrocession 
of two of these leased territories to China since the 
Washington Conference in 1921-22 has shown that 
the retention of " sovereignty " by China has not 
been meaningless. It was the expression of a right 
which China has since asserted, and actually secured 
in the case of Kiaochow and Weihaiwei, the right to 
recover these territories at the expiration of the 
lease, or before. 9 However much China may be con- 
strained by force, as in the case of the extension of 
the Kwantung lease to ninety-nine years in 1915, 
the right to recover the territory eventually is now 
clearly established by the precedents already citable, 
and by the very fact that Japan herself, by taking 
care to renew her lease before its expiration in 
1923, has admitted that possession of the Kwantung 
territory has a time limit. It would seem, therefore, 
that there is even more purpose now than formerly 
to distinguish as sharply as possible between the 
jurisdictional rights of Japan in Kwantung and the 
rights remaining in the lessor as derivable from the 
fact of possessing sovereignty over the territory, a 
distinction which should be kept in mind throughout 
the following sections. 10 

9 Cf. Lauterpacht, H. Private Law Sources and Analogies of 7n- 
ternational Law, pp. 186-187. 

10 a International lawyers should experience no difficulty in dis- 
tinguishing between legal sovereignty and the actual exercise of 
rights of jurisdiction, as well as in correctly construing legal relations 
between States in which not only rights of property stricto sensu but 
also their counterpart in international relations/ namely, the rights 
pertaining to territorial sovereignty, are made the object of a contract 



SOVEBEIGHTY AND JURISDICTIONAL EIGHTS 11 

What, then, are we to conclude with regard to the 
importance of this reservation of sovereignty to 
China? Is the Kwantung lease, so far as China is 
concerned, a territory within which the lessor has 
merely a nudum jus or nuda proprietas? Is this 
lease actually now Japanese territory? 

An affirmative answer to the last question over- 
looks the letter of the original lease convention be- 
tween China and Enssia, and tends to confuse this 
lease with an outright cession. A negative answer 
fails to take account of the broad grant of juris- 
dictional authority to the lessee, first Eussia, then, 
after 1905, Japan, and fails likewise to meet the 
realities of the situation, which, since the Eusso- 
Japanese war, show clearly that the Japanese Gov- 
ernment has practically unlimited power to govern 
the territory. 

The fact is that the realities of the situation com- 
pel the conclusion that the only tenable approach to 
an analysis of the international legal status of the 
Kwantung leased territory must be one which dis- 
tinguishes clearly between the implications involved 

of lease." It appears now that publicists are beginning to discard the 
theory of disguised cessions. (Lauterpacht, op. cat., pp. 180 ff.) 

Similarly, Professor Quincy Wright has well stated the distinction 
between sovereignty and actual exercise of jurisdictional rights: 
" The possibility of divorcing territorial sovereignty from occupations 
and comprehensive jurisdictions in time of peace has been shown by 
leased territories, administered territories, intrusted territories all 
of which resemble familiar divorces of ownership from possession in 
private law." (Mandates under the League of -Nations, pp. 372-373.) 

That sovereignty was retained by the lessor in the Kwantung lease 
was admitted by the Japanese Government in 1900, during the period 
of Russian occupation. (V. 8. For. Rels., 1900, pp. 383 ff.) 



12 SOVEREIGNTY AND JUBISDIOTIONAL BIGHTS 

in the reservation of sovereignty to the lessor and 
the delegation of jurisdictional rights for the period 
of the lease to the lessee. This is quite different from 
assuming that sovereignty, as such, is divided, or 
that here is an illustration of " condominium " or 
" ooimperium ". 

Nor is it believed to be helpful in elucidating the 
status of the Kwantung lease to describe it as actu- 
ally under the sovereignty of the state which is not 
the " territorial sovereign "." Sovereignty over the 
territory is clearly reserved to China, the " terri- 
torial sovereign ". Such rights as are possessed by 
Japan and these are, during the period of the lease, 
most consequential are better described as juris- 
dictional rights, rights which, from an international 
legal point of view, are conferred rights, deriving 
their character from the original lease convention, 
and obtaining their legal sanction from the fact that 
China, the lessor, in exercising her sovereignty, has 
conferred them upon the lessee. 

In so far, then, as the Kwantung lease is concerned 
we have no illustration of what has frequently been 
called " divided sovereignty ", 12 Kwantung is no 
exception to the principle than which there are few 

11 Wright, op. cit., p. 300. 

M Professor Wright has said of leased territories that " the govern- 
ments in leased or administered territories are usually under the 
sovereignty of a state other than, the territorial sovereign ". (Op. cit., 
p. 800.) This is a correct statement in application to Kwantung if 
it be understood that the rights exercised Ixy the lessee state, under its 
own sovereignty, are the products of delegation by China, the lessor. 



SOVEBBIGNTY AND JUBISDIOTIOKAL EIGHTS 13 

more firmly established in international law that a 
state which possesses sovereignty over a given terri- 
tory also has the exclusive legal, right to exercise 
administrative functions in the ara. What has 
occurred is that, in the exercise of this legal right, 
China has conferred the actual right to exercise 
jurisdiction upon the lessee, Japan. These rights of 
administration or jurisdiction conferred on the les- 
see are only confused by referring to them as " sub- 
stantial rights of sovereignty ". is They are rather 
substantial jurisdictional rights, exercised in virtue 
of the fact that the lessee is a sovereign state, but 
one legally incompetent to exercise such rights with- 
out previous delegation from the state which pos- 
\sesses sovereignty over the particular territory in 
1 question. 

From this it follows that, even though a given 
state in practice exercises jurisdictional functions 
over a leased territory, however exclusive these gov- 
ernmental activities may be, the lessee state is not 
'therefore to be considered in possession of sover- 
eignty over the territory. Sovereignty signifies 
ultimate and supreme legal competence. A sovereign 
^state, therefore, to adopt the language of Professor 
*W. "W. Willoughby, " may go to any extent in the 
delegation of its powers to other public bodies, or 
even to other States ; so that, in fact, it may retain 
under its own direction only the most meagre com- 
plement of activities, and yet not impair its Sover- 

18 Of. Hyde, C. C. International Law, Vol. I, p. 275. 



14 SOVEREIGNTY AND JUBISDICTIONAL BIGHTS 

eignty ". 14 Professor Willoughby 's contention that 
sovereignty is indivisible, and that over one and the 
same territory only one state can possess that sover- 
eignty, whatever its applicability to other excep- 
tional international situations, applies with full rigor 
to the Kwantung leased territory. Here is a clear 
instance, as are also the other leased territories in 
China in spite of the variations in language of the 
lease conventions, of a situation where " the other 
public bodies or States, to which have been delegated 
the exercise of these powers, act but as the agents of 
the State in question, and the original State still 
possesses the legal * power, at least, of again draw- 
ing to itself the actual exercise of the powers thus 
granted "." Under the original Kwantung or Liao- 
tung lease convention this might have come about 
only upon the termination of the lease in 1923, or 
twenty-five years after 1898. In 1915 this period was 
extended in favor of Japan to ninety-nine years, or 
until 1997. 

Whatever, then, may be the problems as to sover- 
eignty raised by such unusual situations as man- 
dated territories under the League of Nations, it is 
apparent that leased territories in China, when care- 
fully 'studied, and the Kwantung lease in particular, 
do not furnish us with situations which compel us 
to revise our conception of sovereignty in inter- 

14 Willoughby, W, W. An Examination of the Nature of the State, 
p. 196. (1911 ed.) 
* Italics are my own. 
Willoughby, op. e&, p. 196. 



SOVEBEIGtftY AND JUBISDIOTIOKAL EIGHTS 15 

national law as the ultimate and supreme legal com- 
petence possessed at a given time by only one state 
over a territory. We may conclude, then, with Op- 
penheim, that the principle that " on one and the 
same territory there can exist one full-sovereign 
State only " is here applicable. 16 Leased territories, 
particularly the Kwantung lease, '* ' are apparent, but 
not real, exceptions to this rule ". 17 China, the lessor 
state, actually exercised over Kwantung rights of 
sovereignty, first, in conferring specific jurisdic- 
tional rights upon Russia in 1898, again, in 1905 
when China, in the treaty of Peking of December 22, 
1905, with Japan, agreed to the transfer of the Rus- 
sian rights to Japan, and finally, in 1915 when, by 
treaty and an exchange of notes with Japan, there 
was an agreement to extend the period of the lease 
to ninety-nine years. 

The position of the Chinese delegation at the 
Washington Conference, expressed in a declaration 
in December, 1921, to the following effect, is essen- 
tially correct in strict law and in fact: " Though 
the exercise of administrative rights over the terri- 
tories leased was relinquished by China to the lessee 
power during the period of the lease, the sover- 

16 Oppenheim, L. International Law, Vol. I, pp. 361-862. (1028 ed.) 
Dr. Hsia Ching-lin cites this quotation with approval, but adds: 
" In other words, so long as the lease has not expired it is the lease- 
holder who exercises sovereignty over the territory." (Studies in 
Chinese Diplomatic History, p. 103.) For reasons stated above, it is 
believed less confusing and more accurate to state simply that the 
leaseholder exercises furiacKctional rights over the territory leased. 

17 Oppenheim, p. 862. 



16 SOVEREIGNTY AND JUMSDIOTIONAL BIGHTS 

eignty of China over them had been reserved in all 
oases. The leases were all creatures of compact, dif- 
ferent from cessions both in fact and in law." 18 
Throughout the present study this necessity of dis- 
tinguishing sovereignty from jurisdictional rights 
in the Kwantung leased territory will become in- 
creasingly evident. 

The fact is that, since China is the* " territorial 
sovereign, " Kwantung is Japanese territory only 
for the purpose of governance during the period of 
the lease. The importance of the lessor's sovereign 
rights lies, in the main, in the fact that, without such 
reservation, China's eventual right to recover the 
territory would be cut off. The Kwantung territory 
has not been ceded to Japan, and full title to owner- 
ship has never passed from China. Nothing but 
error can result from confusing this situation with 
so-called" condominium "or" coimperitun ", while 
to refer to the lease as a " disguised cession " is to 
take a superficial and popular, but untenable, posi- 
tion. The attempt to elucidate the status of the 
Kwantung lease by enlisting terminology derived 
from situations presumed to be analogous, but actu- 
ally not parallel, has been fruitful in the past of lit- 
tle but confusion and inaccuracy. The international 
legal status of the Kwantung lease is unique; the 
origin, conventional basis, and de facto position of 
the Japanese rights in the territory are such that 

18 Conference Proceedings, p. 1060. Lauterpaeht, H. Private Law 
Sources and Analogies of International Law, p. 186. 



SOVEEEIGNTY AND JTTBISDIOTIOKAL EIGHTS 17 

accuracy is not served by inevitably futile attempts 
to find analogous situations. In international law, 
Kwantung is sui generis. 19 

18 This view is substantially in agreement with that of Dr. Leon 
Yang, whose doctoral dissertation has recently been published in 
France, this being apparently the first thorough analysis of the 
status of leased territories by a Chinese scholar. A quotation from 
this work, which has come to the writer while the present manuscript 
was being revised for publication, is pertinent: " Le bail entre Na- 
tions est tout uniment un bail du droit international. Baptisons-le 
* Bail international ', si vous voulez. II est un ph&iomene nouveau, 
un acte juridique sw ffeneris dans les rapports entre les Nations." 
(Le* Territoires d bail en CkLne f p. 107.) 



CHAPTER II 

THE ORIGINAL JITRISDICTIONAL RIGHTS OF RUSSIA 

1. The Conventional Basis for the Russian 
Rights. The legal position of Japan in the Kwan- 
tung leased territory is, in the main, the legal posi- 
tion of Russia before 1905, in which year, upon the 
close of the Russo-Japanese war, Japan obtained at 
Portsmouth, as ratified by China in the treaty of 
Peking of December 22, 1905, the transfer of the old 
Russian rights. The jurisdictional rights of Japan, 
however, now extend for a longer period than was 
originally conceded Russia by the lessor. The in- 
trinsic Japanese rights of administration, however, 
are essentially those of the Russians before 1905. 

That China forfeited to Russia in the original lease 
convention of 1898 practically complete rights of 
jurisdiction and administration, civil and military, 
within the Kwantung lease has apparently never 
been questioned by the Chinese Government. The 
Sino-Russian lease convention of March 27, 1898, 
granted to Russia the lease of the Liaotung area, 
since known both by the Russian and the Japanese 
governments as Kwantung Province, and includ- 
ing Port Arthur and Talien,* for a period of twenty- 
five years, that is, until March, 1923. The Sino- 
Japanese treaty and notes of May, 1915, extended 

*Ryojun (Port Arthur) and Dairen (Talien), in Japanese, 

18 



OEIGUTAL JTTBISDIOTIOKAL BIGHTS OF RUSSIA 19 

the period of the lease to ninety-nine years, or until 
1997. Within the leased territory, the original lease 
convention specifically provided that " the entire 
military command of the land and naval forces and 
equally the supreme civil administration will be en- 
tirely given over to the Russian authorities 'V Chi- 
nese military forces were prohibited from entering 
the territory, while the Eussians were granted the 
exclusive right to erect fortifications and maintain 
garrisons there. From a military point of view, the 
only limitation upon the Russian rights was the pro- 
vision whereby Chinese vessels, presumably war 
vessels, were permitted to use Port Arthur along 
with the Russian war vessels. But, inasmuch as the 
Russians were accorded by this agreement exclusive 
authority to fortify and defend the territory, it 
seems reasonable to interpret the exceptional grant 
to Chinese vessels to use Port Arthur as a corollary 
to the Sino-Russian treaty of alliance of June 3, 1896, 
which was textually directed against Japan. 2 

As for the general administrative rights obtained 
by Russia these may be characterized as practically 
exclusive and unlimited, and conferred in the general 
grant of " supreme civil administration " over the 
area. The only general limitation as to the manner 
of exercise of that authority by the Russians was the 
provision that this should be exercised by-* 1 one per- 

iMacMurray, Vol. 1, pp. 119 ff. 

2 This was the famous Li-Lobaaoff secret treaty of alliance, the 
authenticity of which is beyond question. For a lengthy treatment of 
this document see the writer's reference volume: The International 
Relations of Manchuria, pp. 253 ff. 



20 OEtGENTAL JUBISDIOTIOBTAL BIGHTS OF BTTSSIA 

son who, however, shall not have the title of Gover- 
nor or Governor-General ". As to the jurisdiction of 
Eussian judicial agencies within the area, Chinese 
subjects were to be permitted " to remove beyond 
the limits of the territory " or " to remain within 
such limits without restriction on the part of the Eus- 
sian authorities ". The agreement made no excep- 
tion to the exclusive right of the Eussians to exercise 
jurisdiction in all civil cases over Chinese subjects. 
In criminal cases, however, Chinese accused of 
crime were to be entitled to trial by the nearest Chi- 
nese authorities in accordance with Article 8 of the 
treaty of Peking of I860. 8 A minor exception was 
also made for the single city of Chinchow. 

In view of these broad and practically unqualified 
grants of all governmental authority to the Eussian 
Government the limitation which can be read into 
the .clauses reserving sovereignty to the Chinese 
Government can have no significance by way of 
operating to impair the Eussian administrative and 
jurisdictional rights. No other interpretation can 
reasonably be reconciled with the blanket grant 
(Art. 2) to the Eussians of " complete and exclu- 
sive enjoyment of the whole area of the leased terri- 
tory together with the water areas contiguous to 
it ".* By the original lease convention of 1898, there- 
fore, it appears that the Eussian Government ob- 

*The article referred to here is actually not applicable at all to 
such cases and was, therefore, never enforceable. (Of. MacMurray, 
Vol. I, p. 120.) 

* MacMurray, Vol. I, p. 119. 



ORIGINAL JUBISDICTIONAL EIGHTS OF RUSSIA 21 

tained practically complete authority over the Kwan- 
tung leased territory for the term of the lease, which 
was twenty-five years. 

That the Bussian rights were " practically com- 
plete ", instead of absolutely unlimited, is explain- 
able by the exception, quite unimportant in prac- 
tice but yet a limitation in law, which was made for 
the city of Chinchow in the leased territory. The 
original lease convention made no mention of this 
exception, but the additional agreement which de- 
limited the area of the lease and established a bilat- 
eral agreement for control of administration in the 
so-called neutral zone lying to the north of Kwan- 
tung leased territory did make such an exception. 5 
This agreement of May 7, 1898, between China and 
Russia provided that the city of Chinchow should be 
under a form of joint administration of the author- 
ities of the two countries. The article reads : 

"The Russian Government assents to the request of the 
Chinese Government that the Administration and police of 
the City of Kinchow shall be Chinese. Chinese troops will be 
withdrawn from Kinchow and replaced by Russian troops. 
The inhabitants of the city have the power to use the roads 
from Kinchow to the north boundary of the leased territory, 
and the waters usually required near the city, the use of which 
has been granted to Russia; but they have no power to use 
the sea-coast (round about) " 

Chinchow had been transferred to Eussian juris- 
diction by the original lease convention signed in 
March, but this new agreement returned the city 

1 MacMurray, Vol. I, p. 127. 



22 ORIGINAL JTOISDICTIOKAL BIGHTS OF RUSSIA 

to Chinese civil administration, but with the right 
to station troops there retained by the Russians. 
What appears to have been the actual situation at 
Chinchow until 1904 was that, while this textual 
exception to Russian civil jurisdiction was never 
altered by bilateral agreement with China, the Rus- 
sian authorities actually prevented the Chinese from 
exercising exclusive civil jurisdiction within the 
city. During the Boxer Rising the city of Chinchow 
was actually under Russian military administration. 
When those disturbances subsided in the late sum- 
mer of 1900, the Russian Government, through Count 
Lamsdorff, Minister at Peking, pressed for a gen- 
eral agreement to regularize Russian de facto au- 
thority in Manchuria which included, among other 
things, a provision whereby the Chinese adminis- 
trative rights in Chinchow would be abrogated. 6 The 
Chinese Government, however, never formally con- 
ceded the abrogation of this exception made in the 
case of Chinchow, and the alterations conceded by 
the Russian negotiator in March, 1901, and in the 
final draft of the so-called evacuation convention of 
April 8, 1902, left the matter of Chinese administra- 
tion, as far as specific conventional agreement was 
concerned, exactly where it was upon the signing of 
the Sino-Russian agreement of May 8, 1898 pertain- 
ing to the neutral zone. 7 

China, No- 2 (1904), pp. 7, 12, 27. Correspondence Respecting the 
Russian Occupation of Manchuria and Newchwang. (Command 
Papers, British Parliament.) 

''Ibid., p. 27; final text, p. 40; MacMurray, Vol. I, p. 326- 



JTTBISDIOTIO2SrAL BIGHTS OF BTTSSIA 23 

Whatever the textual basis for the Bussian author- 
ity actually exercised at Ohinchow in the leased ter- 
ritory and the right to station troops there was 
specifically conceded to the Russians in fact, the 
Chinese civil administrative authority was com- 
pletely displaced during and after the Boxer Rising 
until the war with Japan. Chinese officials of Muk- 
den who had nominal jurisdiction over Chinchow 
actually were permitted to proceed to the city only 
on sufferance of the Russian commissioner at Muk- 
den, while by the autumn of 1903 Chinchow had been 
definitely excluded from the Chinese provincial ad- 
ministration of Mukden, the four deputy lieutenant- 
generals under the Governor-General of Mukden, 
having been replaced by three, the Chinchow resi- 
dency having been abandoned. 8 It appears, there- 
fore, that the Chinese authorities of Mukden actu- 
ally abandoned jurisdiction over Chinchow in the 
leased territory, 

This interpretation of the extent of jurisdictional 
rights granted to Russia is derivable from the terms 
of the original lease convention itself. The lease 
convention did not create an international servitude 
in strict law, for such leases have several charac- 



a, No. 2 (1904), p. 78; Weale, B. L. Putnam. Manchu and 
Muscovite, p. 274. "That portion of the southern, part of the 
Liaotung Peninsula, which was leased by Russia, had been hitherto 
wholly subjected to Russian control, and all the machinery of legis- 
lation, administration, and jurisdiction there was provided by the 
Russian Government, and the same may be said of Chinchow, where 
the functions of Chinese local officials were practically ignored by 
Russia." (Takahashi, S, International Law Apptied to the Russo- 
Japanese War, p. 253.) 



26 ORIGINAL JTTRISDICTIOETAL BIGHTS OP RUSSIA 

of jurists and publicists who, at the time of the Eus- 
sian occupation, expressed themselves as to the legal 
character of this lease, declaring it to be nothing 
but a " disguised cession ", would seem to have been 
influenced, however, by the outward appearance of 
the lease convention and especially by the character 
of the Eussian occupation. That Eussia had all the 
rights which she would have acquired if Kwantung 
had actually been ceded to her was true for all 
purposes of administering the territory, but the term 
" disguised cession " did not adequately account 
for the fact that the territory ultimately was to be 
recovered by China. 

That it was widely presumed at the time that 
Eussia had no intention of giving up the Kwantung 
lease even upon the expiration of the specified period 
is, of course, understandable, particularly inasmuch 
as the convention itself provided that the term of 
the Eussian occupation might be " prolonged sub- 
sequently by mutual consent of both Governments ", 
but the presumption, strengthened by the actual 
status of the territory during the Eusso-Japanese 
war, failed, because the commentators could not, in 
the nature of the case, anticipate subsequent devel- 
opments. The early commentators failed to recog- 
nize that, in the case of such a political lease, it 
was entirely possible to reserve China's ultimate 
right to recover the territory and at the same time 
to allow Eussia to exercise the jurisdictional rights 
over the territory which had been received from 



OBIGINAL JURISDICTI03STAL BIGHTS OF BTTSSIA 27 

China by specific waiver of her own right for a 
period of years. 

2. The Actual Exercise of Control by the Rus- 
sians: 1898-1904. That the Bussian Government 
acquired the Kwantung leased territory principally 
for strategic purposes is well known. Both Japan and 
Germany, but particularly the former, were the ob- 
jects of the successive steps which Tsarist policy 
took toward establishing a strong military position 
in Manchuria. That Japan was the chief object of 
this strategic entrenchment at Port Arthur is evi- 
dent from the Eussian attitude toward the annexa- 
tion by Japan, in the treaty of ShimonoseM at the 
close of the Sino-Japanese war, of the Liaotung 
peninsula. 1 * The lease of Kiaochow in Shantung 
province by Germany, however, seems to have been 

i* Count Witte, Russian Minister of Finance, who had high favor 
with Tsar Nicholas n, and who was to play so significant a r61e in 
determining Russian policy in Manchuria, felt strongly that for 
Japan to have a territorial base on the mainland of China, par- 
ticularly in Manchuria, was a potential obstacle to his policy of 
"peaceful penetration" with railways and banks. He, therefore, 
always claimed the credit for suggesting the tripartite intervention 
of Russia, Germany and France which compelled Japan to sacrifice 
the fruits of her victory by restoring the Liaotung to China shortly 
after the signing of the peace treaty in 1895. (Memoirs of Count 
Witte, Ch. IV.; Dillon, E. J. The EcUpse of Russia, pp. 244-246.) 
Whether, as a matter of fact, Witte, or even Russia, was principally 
responsible for the initial suggestion for diplomatic intervention di- 
rected against Japan at this juncture is open to some question. (Cf . 
Dennett, Tyler. Americans in Eastern Asia, p. 635. Footnote.) At 
all events, Russia was no doubt wholeheartedly in support of the 
move, with Japan's weakening in Manchuria as the objective. (Lon- 
don Times, April 22, 1895.) (Clyde, P. EL International Rivalries in 
Manchuria, Ch. II.) 



28 OBIGIHTAL JUEISDIOTIONAL BIGHTS OP EXJSSIA 

the immediate cause for Russia's demand of China 
for the lease of Port Arthur and Talien in the Liao- 
tnng peninsula. 13 Thus, a combination of circum- 
stances, the potential menace of Japan in Man- 
churia and the immediate strengthening of the Ger- 
man Far Eastern position by the lease of the naval 
base at Kiaochow, caused Russia to demand a naval 
base at Port Arthur within the confines of a leased 
territory. But, of major significance is the fact that 
the treaty of alliance of 1896, between Russia and 
China, was textually directed against one state 
Japan. The strategic object in leasing Kwantung, 
therefore, was most evident in the desire for a naval 
base at Port Arthur. The lease of such a port to 
Russia, if it were to be used solely as a commercial 
outlet for the Russian Far Eastern area, had not 

13 Count Witte, who recounted to Professor Dillon how the Tsar 
was tricked by the Kaiser into sanctioning the seizure of Kiaochow, 
credits Muravieff with urging upon the Tsar that Port Arthur be 
leased as a "set-off against Kiao-Chow". (Dillon, p. 249). Witte 
claimed to have vehemently opposed the lease of Port Arthur, but, 
in presenting his case to the Tsar, was met with the statement that, 
as an English squadron "was about to take the port", the only 
alternative to Russia was "to abandon it to the English" or else 
to " take it ourselves ". (Ibid., p. 250.) Witte, in his Memoirs, de- 
clared that " it is certain* that by the seizure of Kiao-Chow Emperor 
William furnished the initial impetus to our policy. * ... They 
sought to divert our forces into the Far East so as to insure the 
safety of their Eastern frontier." (Memoirs, p. 105.) While on his 
way to Portsmouth to negotiate the treaty of peace which followed 
Russia's disastrous defeat at the hands of Japan in Manchuria, Count 
Witte is reported to have again asserted: " Wilhelm II is the author 
of the war which we are on our way to America to terminate." 
(Dillon, p. 347.) (Of, Baron Rosen. Forty Years of Diplomacy, 
Vol. I, p. 1W.) 



JTJEISDICTIOlSrAL BIGHTS OF BUSSIA 29 

been opposed by Great Britain, but that government 
had continually opposed the lease of such a port 
as a naval base. 14 

The purpose of the transfer of Kwantung to Bus- 
sia is stated in the first article of the lease convention 
of 1898: " For. the purpose of ensuring that the 
Russian naval forces shall possess an entirely secure 
base on the littoral of northern China, H. M. the 
Emperor of China agrees to place at the disposal of 
the Russian Government, on lease, Port Arthur and 
Talien-wan, together with the water areas contiguous 
to these ports." 15 Commercial considerations were 
distinctly secondary to the main strategic purpose. 
Talien, later called Dalny the ' Far Away City ' ' 
by imperial ukase, was alone to be opened to the com- 
merce of all nations as a free port, while the south- 
ern branch of the Chinese Eastern Railway which 
was contemplated in this original lease convention 
was obviously conceived more for its strategic rela- 
tion to the Russian position at Port Arthur than for 
its secondary commercial significance. 

Perhaps no commentator of international repute 
has so clearly characterized the Russian position in 

^MacMurray, Vol. I, p. 81. Memoirs of Count Witte, pp. 89 ff. 
China, No. I (1898), p. 63. O'Conor to Salisbury, March 23, 1898. 
No. 125. (Of. Clyde, op. cti., Ch. IV and V.) 

15 MacMurray, Vol. I, pp. 119 ff. That Russia had threatened to 
use force to compel China to grant the Liaotung lease, in case of 
any procrastination on China's part, is evident. (China, No. 1 (1888), 
p. 53. MacDonald to Salisbury, March 24, 1898. No. 126.) Russia had 
actually occupied Port Arthur in December, 1897. The Russian de- 
mand was virtually an ultimatum, having a time limit. (Cf . Joseph, P. 
Foreign Diplomacy in China, p. 278.) 



30 OBTGENTAL JUEISDIOTI03STAIJ BIGHTS OP BXTSSIA 

Kwantung province during those years from 1898 
to 1904, as Professor T. J. Lawrence, the eminent 
writer on international law, who made a special 
study of the international legal status of Kwantung 
province before and during the Eusso-Japanese war. 
His views seem to have been characteristic of less 
technically informed opinions expressed by many 
others : 16 

. . . . The powers she [Russia] exercised there, from the 
moment they came into possession six years ago to the out- 
break of the present war, were powers of sovereignty and noth- 
ing else. She held dominion over the whole district; and ac- 
cordingly when hostilities began she used it without limit or 
restraint for warlike purposes, and was subject in it to the on- 
set of her foe/' 

This view of Professor Lawrence is well substan- 
tiated by the Russian activities within the leased 
territory before 1904* The territory was actually 
in partial occupation by Russian troops even before 
the signing of the lease convention* On December 
18, 1897, Russian troops occupied Port Arthur on the 
pretext that the occupation of Kiaochow by the Ger- 
mans had upset the status quo in the Far East. 
Twenty thousand Russian soldiers immediately en- 
tered the town, while the local Chinese officials were 
instructed to leave. 17 They began at once to fortify 
Port Arthur, whose harbor at the time of occupa- 
tion by the Russians was ill-adapted to commercial 
purposes, being wretchedly small, without berthing 

16 Lawrence, T. J. War and Neutrality in the Far East, pp. 207-208. 

17 Memoirs of Count Witte, p. 101, 



OBIGINAL JUBISDICTIONAL BIGHTS OF BTTSSIA 31 

room and landing facilities. Port Arthur was, how- 
ever, naturally well-suited for a naval base; it is 
almost entirely landlocked and surrounded by com- 
manding heights well-suited for the mounting of 
defense guns. By 1901 the Eussians were still busy 
with the fortification of their naval base and already 
torpedo boats were being constructed at the docks. 
" Certainly ", wrote an Englishman who observed 
this activity from the heights above Port Arthur, 
" Japan might just as well sail over and try to take 
Gibraltar or Cronstadt as attempt to reduce Port 
Arthur by assault. " 18 This description of the actual 
Russian position in the leased territory from the 
moment of their occupation indicates that the Rus- 
sian Government not only acquired the legal right 
to fortify that area but actually proceeded at once 
to do so, and in so doing entirely replaced Chinese 
authority by inviting the Chinese administrative 
officials to. leave. 

The situation at Dalny was no less indicative of 
both the purpose of the Russians and the thorough- 
ness of their assumption of political jurisdiction. 
Dalny was actually created by fiat by Russian im- 
perial ukase on August 11, 1899. It was to be the 
terminus of the southern section of the Chinese 
Eastern Railway. It was a mushroom town, which 
rose almost over night when the Tsar commanded: 
" We deem it advisable now to proceed to the con- 
struction .... of a town, to which we give the name 

18 Whigham, H. J. Manchuria and Korea, p. 6. 



32 OBIGINAL JTJBISDICTIONAL BIGHTS OF BUSSIA 

of ' Dalny V 19 No considerable trade justified the 
establishment of the city for commercial purposes 
at that time, for the native city of Talien was but 
a straggling fishing village with little or no sea- 
borne traffic. A distinctly commercial purpose, how- 
ever, was evident in the creation of Dalny, for it was 
aimed at the destruction of Newchwang and to that 
end it was immediately made a free port, open to the 
commerce of all nations, and equipped with harbor 
facilities which soon attracted world trade. Dalny 
was built by funds supplied by the Eussian Govern- 
ment, through the Ministry of Finance, for docks, 
wharves, railway terminals, roads, public buildings 
and a harbor which had to be dredged and protected 
by breakwaters, " Dalny ", wrote the British visitor 
who had likewise observed the Eussian Government's 
activity at Port Arthur, " is, in fact, a ' boom ' town 
without any reason for a * boom ', but different in 
this respect that the mushroom growth is the work 
of a Government, which is determined to build itself 
a metropolis complete in every detail' 7 20 At Dalny, 
as at Port Arthur, the Chinese authorities were 
either entirely displaced or made subservient to the 
Eussian authorities. 

The degree of exercise of authority by the Eus- 
sians in the leased territory is well illustrated by 
the questions which arose with Sir Eobert Hart, 
" I. G." of the Chinese Maritime Customs, over the 

MacMurray, Vol. I, p. 121. 

*mdgham, p. 8* Of. Asakawa, K. The Russo-Japanese Conflict, 
pp. 133-134. 



OBIGESTAL JUBISBIOTIONAJj BIGHTS OF ETTSSIA 33 

establishment of a branch, customs office at Dalny. 
Every other leased territory in China had estab- 
lished within it by 1904 a branch of the Chinese mari- 
time customs, but not Dalny. When Mr* Pokotiloff 
of the Busso-Chinese Bank at Peking proposed an 
appointee, a Russian, of course, for the post at 
Dalny, Sir Robert Hart non-commitally refrained 
from making any appointment at all to the post. 21 
In spite of the opposition of the Chinese Government 
and of the foreign offices of several states, includ- 
ing the British and American, the Russians success- 
fully prevented the establishment of a branch of the 
Chinese maritime customs at Dalny, contending that 
only if the entire administration of the customs 
office were placed in Russian hands would such be 
permissible. 22 The Chinese Government refused to 
grant such exclusive authority over the customs to 
the Russians, and in consequence no such office was 
opened in the entire leased territory during the Rus- 
sian regime. This issue was concerned solely with 
the question of the maritime customs on dutiable 
commodities in transit through the leased territory 
to or from the interior of Manchuria, that is, beyond 
the borders of the leased territory. The Russian 
stand illustrated not only their exclusive authority 
within the leased territory itself, but their attempt 

21 Weale, B. L. Putnam. Manchu and Moscovite, pp. 794SO; Whig- 
ham, pp. 142-143. 

** U. 8. For. Rels^ 1903, p. 47; U. 8. Consular Reports, April,1904. 
No. 283, p. 8; May, 1903, No. 272, p. 140. This situation was a subject 
of interpellation and criticism in the British Parliament during 1903-04. 
(British Parliamentary Debates. Fourth Series. 1903, No. 124, p. 1025. 
China, No. 2 (1904), Command Papers, pp. 53, 95.) 



34 ORIGINAL JURISDICTIONAL BIGHTS OF RUSSIA 

to secure control of the maritime customs beyond the 
jurisdictional limits of the leased territory. 

As for the right to collect customs revenues within 
the leased territory itself, no one ever questioned 
the Russian authority which, under the terms of the 
Sino-Russian agreement for the construction of the 
southern branch of the Chinese Eastern Railway, 
dated July 6, 1898, was specifically granted to the 
Russian Government. " Within the leased territory 
on the Liaotung Peninsula Russia may fix the Cus- 
toms Tariff to suit herself. ... " 2S The Russian 
Government accordingly issued general regulations 
for control of the local customs in the one port 
opened to foreign trade, Dalny, dated August 11, 
1899. 24 

That even before the Boxer Rising in China the 
Russians maintained large garrisons of troops in 
Manchuria, within the leased territory and railway 
areas at such places as Port Arthur, Harbin, Muk- 
den and Newchwang, and beyond the railway areas, 
as at Kirin, is well known. The Chinese attack on 
Blagovestchensk, far to the north on the Amur river, 
which had its sequel in the unbridled retaliation of 
the Russians against the native Chinese populace, 
was a signal for a complete opening of the flood gates 
and the rapid saturating of Manchuria with Russian 
regular troops. Vice Admiral Alexeieff was at this 
time the commander-in-chief of the Russian forces 
in Kwantung province. When once the mid-summer 

* MacMurray, Vol. I, pp. 164 ff., Art. 5. 
p. 121. 



ORIGINAL JTJRISDICTIONAL BIGHTS OF BTJSSIA 35 

madness of the CMnese had subsided, Tsar Nicho- 
las II empowered Alexeieff to negotiate an agree- 
ment for withdrawal of the Enssian troops which 
would, at the same time, secure a more definite recog- 
nition of the right to patrol the Chinese Eastern 
Eailway with Eussian troops or railway guards. 
Such an agreement was, in fact, negotiated by the 
diplomatic commissioner, Korostovetz, who, upon 
instructions from Alexeieff, signed on October 27, 
1900, an evacuation agreement with the Tartar Gen- 
eral of Mukden. Previously there had been no defi- 
nite conventional basis for the Eussian claim of right 
to patrol the Chinese Eastern Eailway. This agree- 
ment, though temporary in character, actually very 
clearly conferred that right upon the Eussians, as 
the following translation of the original and defini- 
tive Eussian text indicates : 2B 

" For the protection of the railroad under construction and 
the maintenance of public order in the region, in Mukden and 
several other points in the Province, Russian troops will be 
stationed, to whom the administration of the Chiang Chun 
(Tartar-General) must show such respect and co-operation as 
may be necessitated, as in securing quarters, purchasing for- 
age, etc." 

25 This Sino-Russian agreement, signed at Port Arthur, is contained 
in the Russian text, which is the definitive one, in B. A. Romanoff's 
Russia in Manchuria: 1892-1906, p. 267, published in 1928 at Lenin- 
grad. The text therein contained is represented as having been quoted 
from the original document contained in the Russian archives, and 
is the same as furnished by the Russian Ministry of Foreign Affairs 
to the Chancellery of the Ministry of Finance, Jan. 3, 1901. This 
new Russian work declares the text as quoted in MacMurray, Vol. I, 
p. 329, to be "in perfectly fantastic wording". This little known 
agreement was partly abrogated by that of April 8, 1902. 

5 . ' ' ' ' ' -..' 



36 OBIGINAL JTURISDICTIONAL RIGHTS OP RUSSIA 

The Kwantung leased territory remained after 
the Boxer Eising under the Ministry of War, with 
Admiral Alexeieff as commander-in-chief of the 
province for purposes of general administration and 
control of the military, while the Ministry of Finance 
and its agent, the Busso-Chinese bank, had charge 
of the building of Dalny, the management of the 
railway, a flotilla of merchant steamers, some armed 
vessels, and handled the quasi-commercial functions 
of the Bussian Government in the Far East. Admiral 
Alexeieff actually had jurisdiction under the Tsar's 
ordinances as far north as Tiehling on the Chinese 
Eastern Bailway, and no foreigner could travel over 
that railway without his express permission. 26 This 
was, of course, beyond the legal rights of the Bus- 
sians in Manchuria, but it was the de facto situation. 

In 1903, by an imperial ukase dated August 12, the 
Tsar actually fused the administration of all the 
territories, formerly under the commanding officer 
of Kwantung province, the Governor-General of the 
Pri-Amur province, and the authorities in North 
Manchuria, by creating the Imperial Lieutenancy of 
the Far East with Admiral Alexeieff as the imperial 
lieutenant. 27 By virtue of this order the imperial 
lieutenant, whose headquarters were at Port Arthur, 
was charged with all military and civil administra- 
tive authority, was entrusted with the coxiduct of 
diplomatic relations pertaining to the Bussian pos- 

2 Wirigham, p. 30. Of. Asakawa, K. The Russo-Japanese Conflict, 
pp. 13$ 301. 
a*MacMuiray, Vol. I, pp. 121 ff. 



ORIGINAL JURISDICTIOHAL, BIGHTS OF RUSSIA 37 

sessions or occupied territories in the Far East, 
and was charged with drafting of the ordinance 
laws for those territories, in all of which functions 
he was to be absolutely independent of any responsi- 
bility to the ministers of state and subject solely to 
a special " presidency " or committee created by 
the Tsar himself. 

Consequently, when the war broke with Japan, the 
Bussian Government exercised authority within 
Kwantung province, and in other areas with less 
legal right, much as if the territory had actually been 
annexed in full title and in perpetuity. The Chinese 
population of Kwantung had been made entirely 
subject to Bussian authority both for purposes of 
administration and in legal proceedings, whether in 
civil or criminal cases. The indefinite provision of 
the original lease convention whereby Chinese ac- 
cused of crime were to be delivered to the nearest 
Chinese authorities for trial was interpreted by the 
Bussians with extreme liberality to suit the facts of 
the situation which were all in support of the Bus- 
sian view that their civil and military authority over 
the leased territory was practically unlimited. Spe- 
cial agreements were signed with the provincial 
authorities of Heilungkiang and Kirin provinces for 
trial of cases involving Chinese subjects in the 
railway areas but none were ever applied to the 
leased territory, the Chinese population being thus 
made subject to Bussian jurisdiction. 



OHAPTEB III 
WAB, NEUTBALITY AND THE LEASED TEKBITOKY 

The Busso-Japanese war showed conclusively that 
for all purposes of war and neutrality tKe Kwan- 
tung leased territory was regarded, both by bel- 
ligerents and neutrals, much as if the territory were 
actually an integral portion of the Russian empire. 
Manchuria, as a whole, was not generally so re- 
garded, though criticism appearing especially in the 
American press at the time, directed against what 
was alleged to be a violation of Chinese neutrality 
by the Russians in Manchuria, was, in the main, ill- 
founded in international law. Except for the terri- 
tory west of the Liao river, the Russian troops were, 
at the outbreak of the war, in practical military occu- 
pation of the railway, the towns situated thereon, 
and the principal points d'appui of the trade arter- 
ies. 1 The status of Manchuria during the Russo- 
Japanese war was, if not unique in international re- 
lations, at least very exceptional. 2 Here was a war 

1 " The status of Manchuria was one of double or ambiguous sov- 
ereignty which is closely analogous to that of a territory or district 
under military or belligerent occupation." (Hershey, Amos S. The 
International Law and Diplomacy of the Russo-Japanese War, p. 263.) 

*Ibid., p. 250. Professor Hershey quotes Hall to the effect that 
" the belligerency or neutrality of territory subject to a double sov- 
ereignty must be determined for external purposes, upon the analogy 
of territory under military occupation, by the belligerent or neutral 
character of the state de facto exercising permanent military control 



WAB, NET7TBALITY AND THE LEASED TBBRITOBY 39 

which on land was fought entirely on the soil of a 
neutral state with the exception, of course, of the 
engagements in the leased territory around Chin- 
chow, Dalny, and Port Arthur, a territory which 
was " Chinese soil " only in the sense that China 
still retained sovereignty over it without the right 
to exercise it. 8 

within it". There is, however, serious objection to the use of the 
term " double sovereignty " generally, or as applied here to the status 
of Manchuria. Sovereignty, both in Manchuria generally and in the 
Kwantung leased territory, was retained by China alone, as today. 
As subsequent chapters here will demonstrate, it is quite possible for 
a sovereign state to divest itself of practically all administrative or 
jurisdictions! right in a given territory and still retain sovereignty 
over it. Sovereignty is not measured by the extent of the exercise 
of jurisdiction, nor is the term to be confused with jurisdictions! 
authority as such. No legal situation illustrates this more clearly than 
a political lease. 

8 By far the most accurate and informative account of the belliger- 
ent status of Manchuria during this struggle is that to be found in 
the monumental work by Dr. 3. Takahashi, one of the most eminent 
of Japanese international legal publicists, a professor of international 
law in the Imperial University of Tokyo, and, during the war, legal 
adviser to the Japanese Foreign Office. From his volume, written in 
1908, it may be well to quote in extenso. 

" Manchuria was under the sovereignty of China, which was neutral 
during the Russo-Japanese war, and hence Manchuria was neutral 
territory. But before the outbreak of the war, Manchuria was occu- 
pied by Russia, and was entirely tinder her authority. The expulsion 
of the Russian troops from the three provinces of Manchuria was the 
principal object of Japan in beginning the war, which was carried 
on de facto in Manchuria. Thus Manchuria came to be occupied by 
the Japanese, who drove out the Russian troops. 

" Taking these facts into consideration, it might be said that the 
occupation of Manchuria was an unique case, different from what is 
called military occupation of hostile territories in International Law. 
But the fact that China recognized a portion of her territory as the 
area of fighting implies that her consent to military operations by 



40 WAR, NEUTRALITY AND THE LEASED TERRITORY 

From the Eussian point of view, Russia was within 
her rights, therefore, in declaring Manchuria a bel- 
ligerent territory. Russia had large vested proprie- 
tary interests in the Chinese Eastern Railway areas, 
in addition to the Kwantung leased territory, and 
the right to use the railway to transport Russian 
troops was explicit in the Russian treaty of alliance 
of 1896 with China. Japan, by the same token, was 
within her rights in attacking the Russian troops in 
Manchuria. The war was fought largely on Chinese 
soil in Manchuria, but at an early stage of the con- 
flict the Chinese Government, by definitely exclud- 
ing Manchuria from the application of China's 
proclamation of neutrality, waived all legal right to 
interfere with the belligerency of the contestants in 
Manchuria. Prince Oh 'ing, in reply to Secretary 
John Hay's communication of February 10, 1904, 

belligerents in her own territory was given. And as a form of military 
operation, the act of occupation is naturally included in this recog- 
nition. Consequently the belligerents must be understood as both 
being privileged to take action similar to those of any common mili- 
tary occupation, on account of the needs of the army as well as of 
the necessity of securing peace and good order in the occupied terri- 
tory." Dr. Takahashi then presents reasonable grounds, since Man- 
churia was the territory of a neutral state, to justify the conclusion 
that not all articles of the Hague Convention of 1899 were applicable. 
(International Law AppUed to the Russo-Japanese War, pp. 250 ff.) 
Professor F. de Martens, the Russian authority, in an article 
written during the Portsmouth peace conference, after commenting 
upon the intensity of the struggle on the Manchurian plains, and 
noting that the war was fought, for the most part on territory of a 
neutral state, makes this striking assertion: " Never before, in the 
history of the civilized world, has a war been conducted under such 
conditions/' (North American Review, Nov., 1905, p. 648.) 



WAB, flTETJTKATJTY AKTD THE LEASED TEBBITOEY 41 

inquiring as to the area within which the Chinese 
Government would preserve their neutrality, as- 
serted that China 's declaration of neutrality did not 
apply to any part of the territory in Manchuria which 
was actually under occupation by Eussian troops. 4 
Consequently, Viceroy Alexeieff during February 
issued a proclamation in which he acknowledged for 
his government that the occupied territories in Man- 
churia were effectively under Russian military con- 
trol, that Chinese civil administrative rights re- 
mained unimpaired, and that Russia would assume 
full responsibility of a belligerent over such terri- 
tories. 5 When the Japanese armies, after driving 
out the Russians, took temporary military posses- 
sion of these same areas the Japanese Government 
assumed similar responsibilities. 6 

* 17. S. For. Rek., 1904, pp. 120 ff. 

'/bid., pp. 126-127. 

6 In "Regulations Governing the Administration of Liaotung Gar- 
risons ", the Japanese military issued special rules for the Kwantung 
leased territory and for " the territory lying outside the land leased 
by Russia "! Within the latter, special military commissioners were to 
take charge of matters arising under belligerent rights, while Chinese 
local authorities were to retain control of all civil administrative 
matters not contrary to military necessity. (Of. Takahashi, op. ctt. t 
pp. 254-256). 

Professor T. J. Lawrence, writing during the war itself, described 
the international legal status of Manchuria during the conflict as 
follows: 

" Two facts are undeniable, and those two facts rule the situation. 
The first is that Manchuria is still in law a portion of the Chinese 
Empire. The second is that the troops of Russia hold the greater 
part of it, and within that part her officers exercise full authority. 
Now there is no part of the international law of war more clear, and 
none more generally accepted, than the principle that when the armed 



42 WAB, KBTTTBALITY A2STD THE LEASED TEBTHTOBY 

What applied to Manchuria generally, applied the 
more so to the Kwantung leased territory. The 
leased territory was not only occupied by Eussian 
troops as a de facto situation, but their presence 
there was with the explicit sanction of the Chinese 
Government in the Liaotung lease convention of 
1898. Eussia, under that agreement, had been per- 
mitted to erect fortifications there. Port Arthur was 
both their naval base in southern Manchuria and 
a point of concentration for the Eussian armies. 
There can be no question, then, but that the Kwan- 
tung leased territory was entirely outside the terri- 
tory over which the Chinese Government undertook 
to preserve their neutrality ; this was explicit in the 
Chinese declaration. In the communications which 
passed between Secretary John Hay and the Chinese 
Government concerning China's neutrality there is 
evident the tendency to take for granted that the 
Kwantung leased territory could not be considered 
as territory over which China had any responsibility 
as a neutral in the conflict. 7 

forces of a state hold a territory not her own in firm possession, so 
that they can exercise their authority at will in any part of it, they 
possess over that territory and its inhabitants certain wide rights, 
called the rights of occupancy, and these rights remain as long as the 
fact of presence and control on which they are based remain. They 
apply to any foreign territory firmly held for warlike purposes, no 

matter how the tenure originated No one denies that the 

outbreak of the war found Eussia in full control of all but the south- 
western portion of Manchuria, but few recognize the importance of 
the legal consequences that follow." (Way and Neutrality in the Fat 
East, pp, 286-287.) 
T V. 8. For. Rels., 1904, pp, 120 ff. The prevalent conception of the 



WAR, NEUTRALITY AND THE LEASED TERRITORY 43 

The actual status of the leased territory during 
the war was practically identical with such Russian 
territories as the Pri-Amur province, including 
Vladivostok, with a technical difference of minor 
importance, which is this, that when the Japanese 
forces eventually occupied the leased territory they 
took care to follow the Eussian precedents in exer- 
cising military administration over it. Thus, for 
example, the Japanese military regulations made 
applicable to the leased territory, as it became pro- 
gressively occupied by their troops, were distinct in 
certain particulars from those made applicable to 
territory outside the lease. 8 But, just as the Bus- 
that they were to be properly described as " disguised cessions ". Al- 
though this conception is by no means adequate, since these leases 
in China were not properly termed cessions at all, all of the publicists 
who regarded these territories as such naturally conceded that, for 
all purposes of war and neutrality, such a lease as the Kwantung 
territory was to be regarded as as much the territory of the lessee 
state as if it had been actually annexed in full sovereignty and per- 
petuity. This was especially the view of French publicists. (Cf. 
" Territoires code's a bail en Chine ", Revue ffen&rale de droit inter- 
national pubtic, Vol. XV, 1908. pp. 174-175; Perrinjaquet, J. Des ces- 
sions, temporaires de territoires, pp. 265 ff.; Gerard, L. Des cessions 
dSguis4es de territoires en droit international pubUc, pp. 285 ff.; de 
Pouvourville, A. "Les fictions internationales en Extr&ne-Orient ", 
Revue g^nSrale de droit international public, Vol. VI, 1899, pp. 118 ff.). 

8 Professor S. Takahashi, therefore, rightfully distinguishes between 
the rights of military occupancy of the Japanese in Manchuria gener- 
ally and in the leased territory. Of the latter, he wrote: 

" That portion of the southern part of the Liaotung Peninsula, 
which was leased by Russia, had been hitherto wholly subjected to 
Russian control, and all the machinery of legislation, administration, 
and jurisdiction there was provided by the Russian Government, and 
the same may be said of Chinchbw, where the functions of Chinese 
local officials were practically ignored by Russia. Administration 



44 WAB, HTETJTRALITY AND THE LEASED TEBEITOBY 

sians had been legally permitted by China to fortify 
Port Arthur and use the leased territory for mili- 
tary purposes without restriction, so that territory, 
after the enemy belligerent had been expelled, fell 
under the authority of the Japanese for purposes 
of military occupation. 

Immediately upon the outbreak of hostilities the 
Japanese Government, through their consul at Ohe- 
f oo, and with the assistance of foreign vessels, re- 
moved all Japanese subjects from Port Arthur and 
the leased territory, just as they were compelled to 
remove from Siberia and the Pri-Amur province. 
Three months later Vice- Admiral Togo (May 26, 
1904) issued a declaration of blockade of the Liao^ 
tung peninsula, which included the leased territory. 

of the Russian lease (Chinchow included) should have been assumed 
entirely by the Japanese Government, partly because that portion of 
territory had remained hitherto entirely in Russian control, and 
partly because her rights required to be firmly planted there. 1 ' But 
Dr. Takahashi adds a sentence which, while supportable by the 
former Japanese official interpretation of the international legal status 
of the leased territory, was not supported in strict law by other 
foreign states. "The same right, however, being based merely on 
the fact of occupation, and not authorized by any special treaty, 
any foreign criminal found within the same territory should have 
been handed over to his own consul to be properly dealt with." 
(Takahashi, op. tit., p. 263.) Japan alone maintained before the 
war that the rights of foreigners, under their extraterritorial treaties 
with China, should apply to the Kwantung leased territory. There 
is this to be said for his view, however, that Japan only possessed 
the rights of military occupancy, not of conquest, for Japan later 
recognized that China's consent to the transfer of the lease to Japan 
was necessary. It is reasonable to conclude, however, that Japan's 
rights as military occupant there were different in kind from those 
elsewhere in Manchuria. 



WAB, KBTTTBALiITY AND THE LEASED TEEBITOBT 45 

This was immediately made effective, particularly as 
against Chinese junks carrying contraband, until it 
was lifted upon the capture of Port Arthur by the 
Japanese forces on January 7, 1905, 9 Japan there- 
upon acquired all the rights of military occupancy 
and exercised them until they were regularized by 
the armistice and the treaty of Portsmouth, and the 
approval of the Chinese Government to the transfer 
of the Kwantung leased territory to Japan, given in 
the treaty of Peking of December 22, 1905. 

The view of certain writers that the Kwantung 
leased territory, or the other leased territories in 
China, should be regarded as " quasi-neutralized " 
or " exempted from hostile attack ", or that " they 
have been permanently neutralized between China 
and the lessee states ", 10 is neither supportable by 
the de facto occurrences of the Russo-Japanese war, 
the views of the recognized publicists who have writ- 
ten to the point, nor by the declared attitude of the 

8 Takahashi, op. tit., p. 359. 

10 Cf. TVau, M. T. 2. Legal Obligations, etc., p. 75; Hsia, Ching- 
lin, Studies in Chwese Diplomatic History, pp. 110-113; Ban, M. J. 
Foreign Relations of China, p. 333. (1st ed.) The latter goes so far 
as to contend that " in time of war between the lessee state and other 
states, the lessee state must observe neutrality in the leased area and 
retain the territories only on condition of quiet enjoyment ". Here is 
a phrase evidently drawn from the private law of lease of real 
property which suggests that the conclusion has been drawn from 
the presumed analogy of political leases with private law leases, or 
leases in municipal law. A criticism of this analogy follows in another 
section. 



46 WAB, NEUTRALITY AKD THE LEASED TERRITORY 

Chinese Government during the war itself. 11 The 
Chinese Government, as has been said, did not claim 
that the Kwantung leased territory should be re- 
garded as neutral or " neutralized " territory. 
Particularly would this have been inconsistent in 
the case of Kwantung for China 's consent to the 
fortification of Port Arthur had been explicit, and, 
especially in a war where Eussia was a participant 
China being an ally under the terms of the alliance 
of 1896 it would have been manifestly absurd for 
any foreign state, enemy or neutral, to regard the 
Kwantung leased territory as other than subject to 
attack by the enemy. 12 

11 To this point Professor T. J. Lawrence has written with ex- 
ceptional clarity and definiteness: 

" She [Russia] held dominion over the whole district ; and accord- 
ingly when hostilities began she used it without limit or restraint 
for warlike purposes, and was subject in it to the onset of her foe. 
It is worthy of remark that, though she denounced Japan's first 
attempt on Port Arthur as treacherous, she never maintained that 
the place, and the leased territory generally, were free from attack, 
as being under the sovereignty of China and therefore neutral ground. 
There can be no doubt that the whole world looks upon Port Arthur 
and Dalny as Russian territory; and unless the whole world is wrong, 
Russia was right in filling the district and its waters with troops and 
warships and Japan was right in doing her utmost to destroy or 
capture them." His conclusion appears correct, but, as will appear 
later, Professor Lawrence was wrong in assuming that the leased 
territory was adequately to be called " Russian territory ". He, like 
most writers of the time, was inclined to forget that China's sover- 
eignty meant something real, and was accustomed to refer to the 
lease as a " disguised cession "which it was not, (War and Neutral- 
ity in the Far East, pp. 273-274.) 

12 John Westlake was in full agreement with Professor Lawrence 
as to the position of leased territories, holding that they are subject 
to attack by the enemy of the lessee state in time of war. (Inter- 



WAR, NEUTRALITY AND THE LEASED TERRITORY 47 

That this leased territory should have been re- 
garded at the outbreak of the Eusso-Japanese war 
as Eussian territory for all purposes of war and 
neutrality was entirely in accord with the realities 
of the situation, and with the attitude of the German 
Government with respect to their own political lease 
at Kiaochow. After the memorable naval engage- 
ment of August 10, 1904, six Eussian warships fled 
into Kiaochow. On the representation of the Japa- 
nese Minister at Berlin, the German Government 
instructed the Governor of Kiaochow that, in future, 
belligerent vessels entering the harbor should be 
permitted twenty-four hours to take on coal neces- 
sary to clear the harbor, but if any ship refused to 
leave after that time it was to be disarmed and held 
by the authorities. 18 These Eussian warships, being 
partly disabled, were forthwith disarmed at Tsing- 
tao. Germany, not China, but with the specific ap- 
proval of the Chinese Government as communicated 
to Japan, assumed the full responsibility for main- 
taining the status of the Kiaochow leased territory 

national Law, Pt. 1, pp. 133-134. Cambridge, 1910.) F. E. Smith 
(Earl of Birkenhead) and N. W. Sibley fail to deal at all adequately 
with the anomalous status of Manchuria and that of the Kwantung 
lease during the Russo-Japanese war. (International Law as Inter- 
preted during the Russo-Japanese War.) 

18 It is interesting to note that Professor Franz von Liszt, an emi- 
nent German professor of international law, strongly urged the 
adoption of the 24-hour limit by neutrals, and published in the 
Deutsche Juristen Zeitung an article in which he stated that the 
German Chancellor had enforced at Tsingtao the very principle the 
professor had so strongly advocated, as a correct principle of interna- 
tional law. (Takahashi, op. dt., p. .448.) 



48 WAR, NEUTRALITY ABTD THE LEASED TERRITORY 

as neutral territory. Thus, in addition to the prece- 
dent established in the Kwantung leased territory 
during the Eusso-Japanese war, there was also the 
precedent of Kiaochow, both of which were regarded 
by belligerents and neutrals, including China, as 
withiri the jurisdiction of the lessee state for all 
purposes of war and neutrality. 

The practice of international law applying to 
leased territories during the Eusso-Japanese war, 
therefore, furnished adequate precedent for the at- 
tack of Japan upon Tsingtao during the World War, 
at least from a strictly juristic view of the relation 
of the Kiaochow leased territory to the German 
Government. However much the carrying of hos- 
tilities into these leased territories, over which China 
retains sovereignty with the ultimate right to recover 
them completely, must produce inevitably most un- 
fortunate circumstances for the innocent Chinese 
populace within them, and however much, as a mat- 
ter of comity toward China, policy should dictate 
that the lessee states refrain from using them as 
principal bases of military and naval operations, it 
is evident that these leases were created largely for 
the very purpose of giving the lessees military 
strongholds on the China coast, and, in strict law, 
they are as subject to the onslaught of the enemy, 
should war break out, as the lessee 's native soil 
In passing, particularly to correct a very prevalent 
impression outside of the Par East, it is worthy of 
remark that Port Arthur is not today a fortified 



WAR, NEUTRALITY AND THE LEASED TERRITORY 49 

naval base of Japan, although it is within a zone 
designated as strategic. 14 So also, for that matter, 
is Dairen. 

i* The Japanese Government have taken the position that the re- 
sponsibility for maintaining the neutral status of the Kwantung 
leased territory in time of civil war in China rests upon Japan. Dur- 
ing 1927 certain Chinese warships, belonging to the northern Chinese 
coalition against the Nanking Government, were undergoing repairs 
at the Manchuria Dock Company's repair docks at Port Arthur* In 
reply to a protest of the Chinese Government, the Japanese Foreign 
Office and the Kwantung Government held that Japan was observing 
neutrality in the case; that the Manchuria Dock Company was a 
private concern which showed no discrimination between opposing 
factions in China which might wish to have ships repaired at Port 
Arthur; and that no state of belligerency had been recognized for the 
northern coalition. (Manchwia Dotty News, May 19 and 23, 1927.) 



CHAPTER IV 

THE ACQUIRED JUBISDIOTIONAL RIGHTS OP JAPAN 

1. The Nature of the Japanese Rights. By virtue 
of the treaty of Portsmouth and the Sino-Japanese 
treaty which followed on December 22, 1905, all of 
the Russian rights within the Kwantung leased terri- 
tory were transferred to Japan. Japan, in thus ac- 
quiring the former Russian jurisdictional rights in 
the leased territory, together with the other railway 
and mining rights conceded at the same time, not 
only obtained the Russian rights but acquired the 
responsibilities as determined by the various bilat- 
eral agreements between China, and Russia from 
1895 to 1904. The treaty of Portsmouth (Septem- 
ber 5, 1905) provided in one all-embracing article 
(Art. 5) with respect to the leasehold: l 

" The Imperial Russian Government transfer and assign to 
the Imperial Government of Japan, with the consent of the 
Government of China, the lease of Port Arthur, Talien and 
adjacent territory and territorial waters and all rights privi- 
leges and concessions connected with or forming part of such 
lease and they also transfer and assign to the Imperial Gov- 
ernment of Japan all public works and properties in the ter- 
ritory affected by the above mentioned lease/' 

The same article stipulated that to validate this 
transfer the Japanese Government would have to 
obtain the consent of China, although the original 

1 MacMurray, Vol. I, pp. 522 ff . 

50 



ACQUIRED JURISDIOTIOKTAL EIGHTS Otf JAPAN 51 

lease convention had not, as in the case of the Kiao- 
chow lease convention, specified that the leased ter- 
ritory was non-assignable by the lessee. China 's 
consent, however, was obtained to this and the other 
transfers of the treaty of Portsmouth by the Sino- 
Japanese treaty of Peking of December 22, 1905. 2 
The agreement was signed by Baron Komura, after 
his return from Portsmouth, and by Yuan Shih-k'ai, 
then Viceroy of Chihli province, as well as by other 
plenipotentiaries. In one succinct article (Art. 1) 
China consented to the transfers in these words: 
" The Imperial Chinese Government consent to all 
the transfers and assignments made by Russia and 
Japan by Articles V and VI of the Treaty of Peace 
above mentioned. " The other article provided that, 
both in regard to the leased territory and the railway 
rights, the Japanese Government, according to the 
English version of the Japanese text, would " so 
far as circumstances permit, conform to the original 
agreements concluded between China and Eussia ". 
According to the Japanese text, questions of inter- 
pretation should be decided by the Japanese Govern- 
ment " in consultation with the Chinese Govern- 
ment ".* But no great problem of interpreting this 

2 MacMurray, Vol. I, pp. 649 ff. Textually, the Kwantung lease was 
not declared to be non-transferable or non-assignable to a third state, 
but the fact that Japan, acting on the urging of the Russian delegates 
at Portsmouth, agreed to obtain China's consent to the transfers there 
made to Japan may be taken as an admission that the Kwantung 
lease cannot be assigned to a third party without the consent of China. 

8 MacMurray, Vol. I, pp. 522 ff. The Chinese text, however, gives 
a somewhat different version of this article. (Of. Yueh Chang Hui 
Yao IA Collection of Treaties, etc.], Vol. I, pp. 121-12$. 2 vols., 
6 



52 ACQUIRED JTTKISDICTIOlSrAL EIGHTS OP JAPAK 

treaty, in so far as it had application to the leased 
territory, has ever arisen: the importance of the 
question of interpretation has arisen rather in con- 
nection with the jurisdictional rights of Japan in 
the South Manchuria Eailway areas. 

Recalling, then, the exceptions made in the original 
Liaotung lease convention to the exercise of exclusive 
administrative and jurisdictional authority by Rus- 
sia in the leased territory the case of Ohinchow, 
the Chinese right to use Port Arthur and Dalny 
(Dairen) for their war vessels, and the provision 
that in criminal cases against Chinese residents the 
accused were to be turned over " to the nearest Chi- 
nese authorities " what is evident is that the ex- 
ceptions were so insignificant in themselves as to be 
quite unimportant for all practical purposes, and 
that these very exceptions serve to prove the rule 

June, 1927, Mukden. Official Publication of The Foreign Intercourse 
Office, in Chinese.) Dr. Hsu Shu-hsi gives this translation from the 
original Chinese text, which is a correct rendering of the intent of 
this article: "Article II. The Government of Japan engages to 
earnestly observe the original agreements entered into between China 
and Russia respecting the lease and the construction of the railway, 
and to promptly consult and determine with the Government of 
China as matters come up in the future." (Problems of the Pacific, 
19J29, p. 473.) The intent of this article, as evidenced by the Chinese 
text, was not to concede to Japan any arbitrary or prior right to place 
a unilateral interpretation upon the mooted problems to arise out 
of this treaty's application. A reasonable interpretation of this ques- 
tion would, of course, give equal authority to the Chinese Govern- 
ment. It is, however, significant that this treaty was drawn only in the 
Chinese and Japanese languages, a departure from the former prac- 
tice of Japan in agreements with China. (U. 8, For. Rels., 1906, Ft. I, 
p. 996.) 



ACQUIRED JURISDIOTIOlSrAL BIGHTS OF JAPAN 53 

which was that within the Kwantnng leased territory 
the Bnssian political authority, during the period 
of the lease, was practically unimpaired. Russia had 
acquired, to repeat, " the entire military command ", 
together with " the supreme civil administration " 
of the leased territory within which she was to have 
" complete and exclusive enjoyment of the whole 
area .... together with the water areas contiguous 
to it ".* 

These clauses can hardly be interpreted as other 
than granting the lessee practically unlimited ad- 

4 The geographical extent of the Kwantung leased territory was 
approximately 1,300 square miles, including coastal islands, the con- 
fines of the territory having been defined in the supplementary 
agreement of May 7, 1898. This was to include, then, the area lying 
south of a line drawn roughly from the west coast of the peninsula, 
from a point on the north side of Yatang bay to a point on the north 
side of Pitzuwo bay. A special area, lying to the north of the leased 
territory, was designated a " neutral zone " over which the Chinese 
Government was to exercise full jurisdiction, but Russia (later Japan) 
was to be entitled to certain exclusive concessionary rights therein. 
No troops were to be despatched there by either party without the 
consent of the other. No important problems have ever arisen con- 
cerning this matter of the "neutral ground" north of the leased 
territory. On several occasions both the Chinese and Japanese have 
sent troops to the area to suppress banditry or civil disorder, and have 
followed the practice of first informing the other. For example, in 
September, 1911, when this area was the scene of disturbances caused 
by certain disaffected Chinese elements, the Chinese Government 
applied to Tokyo through the Japanese Minister in Peking for per- 
mission to send Chinese troops to quiet the area. The Japanese 
Government immediately gave their consent, and Chinese troops 
were sent to the " neutral ground ". Later in the year, similar riots 
broke out, under the direction of Chinese revolutionaries. Again 
permission was asked of Japan, and Chinese troops were sent there 
with Japanese consent* (Manchuria Daily News, Sept. 12, Dec. 28-30, 
1911.) 



54 ACQUIRED JURISDICTIOKAL EIGHTS OF JAPAN 

ministrative and jurisdictional rights in the leased 
territory. The de facto interpretation of those 
clauses under the Eussians, during their period of 
administration of the Kwantung territory between 
1898 and 1904, served to establish precedents which 
Japan might have been expected to follow, while 
China 's non-assumption of neutral rights over the 
territory during the Russo-Japanese war gave fur-, 
ther strength to the interpretation that Japan ob- 
tained with the lease itself in 1905 practically ex- 
clusive rights of administration and jurisdiction 
over the territory. The minor exceptions, however, 
are interesting in themselves, and although some at- 
tention should be given them, the facts relating to 
them should not detract from the general interpreta- 
tion presented above. 

One of these minor exceptions to the exclusive 
right of Eussia to exercise political authority over 
Kwantung was that Chinese war vessels were to be 
permitted to use the harbors of Port Arthur and 
Dairen. This may be interpreted as a corollary of 
the Sino-Eussian treaty of alliance of 1896, which 
had been directed explicitly against Japan. The sub- 
stance of this treaty of allianc'e seems to have been 
well understood by the Japanese Government as 
early as 1897, but the official text itself had been kept 
secret until many years later. Port Arthur had been 
made a naval base by China before the lease con- 
vention. As China's naval strength was known to be 
inconsequential, the inclusion of this exception in 



AOQTJIBED JUEISDICTIOlsrAIi BIGHTS OP JAPAN 55 

the lease convention appears to have been merely a 
polite and meaningless bit of largesse from Russia. 
It might also be argued that China lost what right 
she had to use these ports by refraining from com- 
ing to the aid of her ally during the Russo-Japanese 
war. Yet it might be argued, in strict law, that the 
acquisition of the lease by Japan revived China's 
right to use the harbors mentioned. As a matter of 
fact Chinese war vessels have frequently entered 
Port Arthur for repairs, as in 1927. A reasonable 
conclusion as to this exception today would seem 
to be that Chinese war vessels still retain the right 
to enter these harbors, now under Japanese control, 
but that such entry must be for purposes and with 
attendant circumstances which would not constitute 
a potential menace to the security of the lessee. 5 
This exception, as far as having any bearing on 
Japanese rights in the Kwantung leased territory, 
is inconsequential. 

Another minor exception to the general grant of 
authority to the lessee state was that Chinese resi- 
dents were to be permitted trial, when accused in 
criminal cases, by the " nearest Chinese author- 
ities ". This was a sort of " extraterritorial " grant 
of authority to the Chinese to permit the removal of 

5 Port Arthur, as has been, noted in a previous section, is no longer 
a naval base of Japan, and there is none in the leased territory. In 
March, 1914, Port Arthur was reduced to the status of a naval depot, 
and in November, 1922, to a coast guard station. In April, 1925, this 
coast guard station was abolished and, Fort Arthur is now an ordinary 
port commercially of no significance. (4 Brief Sketch of the Kwan- 
Government, p. 8.) 



56 ACQUIRED JURISDICTIONS RIGHTS OF JAPAN 

such, cases from Russian, therefore, Japanese juris- 
diction. 8 This specific exception to the exercise of 
Bussian jurisdiction over Kwantung became a dead 
letter in practice during the Russian period of ad- 
ministration. All Chinese officials were removed 
from the territory after 1903 when the local deputy 
residents were withdrawn from Ohinchow. No spe- 
cific statement of procedure to accomplish such re- 
moval of cases from the jurisdiction of the lessee 
state had ever been made, and, in any event, the 
resulting indefiniteness was such that the Russians 
naturally assumed the exception to be of little con- 
sequence. Had Ohinchow remained under Chinese 
civil administration during the period of Russian 
occupation the procedure in handling criminal cases 
in which Chinese were the accused might have been 
very different, though it is difficult to see how any- 
thing but confusion would have resulted from the 
attempt to separate civil and criminal cases, particu- 

MacMurray, Vol. I, p. 120. Art, IV. " , . , . Chinese inhabitants 
retain the right, as they may desire, either to remove beyond the 
limits of the territory leased by Russia or to remain within such limits 
without restriction on the part of the Russian authorities. In the 
event of a Chinese subject committing any crime within the limits 
of the leased territory, the offender will be handed over to the nearest 
Chinese authorities for trial and punishment in accordance with 
Chinese laws, as laid down in Article VIII of the Treaty of Peking of 
1860." (Lease Convention of March 27, 1898.) According to the 
Russian Government, this article is not correctly translated as above. 
The Russian legation informed Minister Conger in Peking in 1890 
that " that provision is not correctly translated " and " that construing 
it in connection with Article VIII of the treaty of I860 they [the 
Russian Government] have the right to try Chinese for crimes com- 
mitted against Russians". (V. S. For. Rek., 1900, p. 386.) 



ACQUIRED JTTBISDIOTIONAL BIGHTS OP JAPAN 57 

larly when the lessee state was specifically granted 
control of all military and police agencies within the 
area. 7 

The Japanese administrative authorities in Kwan- 
tung province have quite naturally followed the Bus- 
sian precedent in this regard, and, although in strict 
law, and in the absence of a special agreement be- 
tween China and Japan on this subject, altering the 
situation established by the original lease conven- 
tion of 1898, the Chinese Government technically 
still retain the right to require the fulfilment of 
this clause exempting Chinese from criminal pro- 
cedure when they are defendants. Under present 
circumstances it would be patently impossible of 
application. 8 There are no Chinese officials, respon- 
sible to Chinese authority, in the leased territory. 
For the Japanese to make arrests in all cases, petty 
or flagrant, and turn the accused over to Chinese 

7 Professor G. W. Keeton in a recent work notes this exception, 
merely quoting the original lease convention, but concludes: " Rus- 
sian jurisdiction in the Kwangtung Peninsula ceased after the Russo- 
Japanese War. Under Japanese rule, Japanese courts alone have 
jurisdiction." (Because of the constant confusion of the name 
"Kwantung" with "Kwangtung", the Chinese province of Canton, 
his spelling here should be corrected. This confusion is even more 
common than the all too frequent " Darien " for Dairen " !) Professor 
Keeton draws attention to somewhat parallel situations at Kowloon, 
Weihaiwei and Kiaochow, although he notes the truth that there are 
distinct textual variations in each of these cases. (The Development 
oj Extraterritoriality in CMna, Vol. I, p. 307.) 

8 As previously noted, however, the Russian Government in 1899 
claimed that the current English text of the 1898 lease convention was 
incorrectly translated, and that the Russian authorities were entitled 
to try Chinese accused of crime in the territory. (27. S. For. Rels., 
1900. t>. 386.) 



58 AOQITIBBD JUEISDIOTIOKAL. EIGHTS OF JAPAN 

authority, without any means provided for enforce- 
ment of such judgments as might be handed down 
by a Chinese court, say at Liaoyang or Mukden, 
would result in nothing but constant friction, and 
circumvention in practice. 

The third minor exception to exclusive civil and 
military authority of the Russians, as provided for 
in the original lease convention, was the case of 
Chinchow. This exception was made in the special 
agreement of May 7, 1898, which provided for the 
geographical delimitation of the boundaries of the 
leased territory and of the " neutral ground " lying 
to the north. 10 What the exact intent of this excep- 
tion was, it is impossible to say with complete defin- 
iteness, as the agreement itself is silent on the point. 
It appears, however, that this was an exception con- 
ceded by the Russians solely to permit the local Chi- 
nese officials in Chinchow to exercise a limited degree 
of municipal authority in the city only, and that this, 
as explicit in the agreement, was to be reconcilable 
with the Russian right to replace the Chinese troops 
with Russians. 11 It is evident that the original justi- 
fication for excepting Chinchow may not apply today, 
for while Chinchow was in 1898 the only town of 

9 Another minor exception to the exclusive authority of the lessee 
state was this, that the highest official should " not have the title of 
Governor or Governor-General". The exception has no practical 
significance. The Japanese today claim that the characters used to 
denominate the " Governor ", i. e., Chokari in Japanese, or Chang 
Kuan in Chinese, are legitimate under the meaning of the convention 
of 1898. 

MacMurray, VoK I, p. 127. 
p. 137. 



ACQUIRED JTJRISDIOTIONAL BIGHTS OF JAPAN 59 

considerable size in the leased territory, today it 
has become of only minor importance when com- 
pared with Dairen a city of over a hundred thou- 
sand population or Port Arthur. Furthermore, the 
realities of the situation would make resumption of 
any Chinese authority over Chinchow quite impos- 
sible. This city is as much an integral part of the 
leased territory as any of the half dozen villages to 
the north of it, all of which lie within Japanese juris- 
diction. As a working arrangement it would be 
quite impracticable for the Chinese to exercise any 
administrative authority in this city without having 
additional police authority, which, under the Eussian 
text of the original boundary agreement, was clearly 
granted to the Bussians. 1 * Furthermore, Chinchow 

"Japanese officials in. Dairen hold that the translation of this 
article of the agreement (May 7, 1808) as given in MacMurray's 
treaty collection, is not a proper rendering of the Russian text, in 
that it should read " system of municipal autonomy " instead of " ad- 
ministration and police". The Japanese hold that whatever form of 
local Chinese administration were to be established in Chinchow, the 
intent of the agreement of 1898 was to make such a system subor- 
dinate juridically to the government of the lessee state. That this 
interpretation of the Russian text is entirely accurate is open to 
some doubt. At the outset, it is quite clear that the Russians did 
permit the Chinese to exercise municipal jurisdiction in Chinchow. 
In 1900, for example, numerous difficulties arose as to the interpre- 
tation, of this confused article because Chinese were admittedly sub- 
ject to Russian jurisdiction outside the walla of the city, but when 
they entered the walled city they were at that time under Chinese 
administration. (Cf. Hosie, A. Manchuaria, p. 79.) Furthermore, this 
difficulty caused so much confusion that the Russians made a request 
for " abolition of Chinese administration in the town of Chinchow " 
in February, 1901 thus admitting technically that Chinese retained 
municipal jurisdiction there. (CMna, No. 2, Rvtaian Occupation of 
Manchuria arid Neuchuaw- Command Papers, 19ftf> p. 7.) The Bus- 



60 ACQUIRED JTJRISDICTIOSTAL RIGHTS OF JAPAN 

is situated on the South Manchuria Eailway, which, 
within the leased territory is, without question, sub- 
ject to police by the authority of the lessee state. 

It does not appear that the Chinese Government 
has ever made any serious effort to recover any form 
of adminstrative authority over Chinchow since 
Japanese assumption of authority in 1905. For a 
quarter century the Japanese have exercised com- 
plete civil and military authority over the city. It 
is believed that any attempt of the Chinese Govern- 
ment to recover this exceptional authority over Chin- 
chow, which has, in practice, lapsed since 1903, would 
meet with no success, in part because the agreements 
clearly prevent the Chinese from exercising police 
or military authority within the city itself. 

2. Japanese Jurisdiction over Chinese Residents. 
Several interesting questions may be raised with re- 

sians proposed a new agreement at this time with respect to Man- 
churia which contained a clause to the following import: "China's 
autonomous rights in the city of Chinchow, secured to her by Article 
4 of the Special Agreement of May 7th, 1898, are hereby abrogated." 
(Ibid., p. 12.) The proposed agreement was not accepted by the 
Chinese, and this article was later expunged in the alterations of 
March and August, 1901, and was, therefore, not included in the final 
ratified agreement of evacuation of April 8, 1902. (Ibid., p. 36; Mac- 
Murray, Vol. I, p. 326.) Nevertheless, the Chinese withdrew their 
deputy-resident from Chinchow in 1903. (Weale, Putnam. Manchu 
and Muscovite, p. 274.) It is interesting to note that Professor S. 
Takahashi presents evidence that the Japanese military authorities 
during the Russo-Japanese war, upon occupying the Kwantung leased 
territory, recognized technically that Chinchow had a status separate 
and distinct from the rest of the territory, and that the legality of 
the assumption of jurisdiction over Chinchow by the Japanese was 
based entirely upon the de facto situation and the precedent set 
by the Russians. (International Law Applied to the Russo-Japanese 
War, pp. 252-257J 



ACQTJIBED JTJEISDICTIONAL EIGHTS OF JAPAN" 61 

spect to the status of Chinese residing in the Kwan- 
tung leased territory under Japanese jurisdiction. 
In practice Japanese authority is complete over Chi- 
nese residents, even as over Japanese. As will ap- 
pear later, foreigners residing in the leased terri- 
tory are not subject to such privileges by way of 
immunity from trial in Japanese courts as were pro- 
vided for them under their extraterritorial treaties 
with China. The Japanese have from the beginning 
exercised complete jurisdiction, in both civil and 
criminal cases, over Chinese residents, who, under 
the original 1898 lease conventions are definitely sub- 
ject to the administrative authority of the lessee 
state. When the Japanese proceeded, after 1905, to 
establish a civil administrative system for Kwan- 
tung province, Eussian precedents were followed, 
and no subsequent agreement with China since that 
time has altered this arrangement. 

Chinese residents in the leased territory have been 
treated, therefore, under Japanese law applicable 
to the province, as subject to Japanese jurisdiction 
quite as much as if they were Japanese nationals 
which, in law, they are not. Chinese residents are 
subject to essentially the same judicial procedure, 
and are under the same court system, as Japanese 
residents, though the law applicable to the Chinese, 
in both civil and criminal cases, varied, especially 
in the early years of Japanese control. The portions 
of the Japanese civil and criminal codes which by 
imperial ordinance have been made applicable to 
Kwantung province have been amended to make them 



62 AOQUIEED JTTRISDICTIONAL, BIGHTS OF JAPABT 

more suitable in their application to the Chinese 
whose customs and legal practices are variant from 
those of the Japanese. 18 

Another perhaps interesting commentary on the 
status of Chinese residents in the leased territory is 
that, not only are such residents permitted freely to 
reside there, but Chinese immigrants are permitted 
to enter the territory and settle within it perma- 
nently. Furthermore, no passports are required for 
Chinese passing through the territory from other 
parts of China, an arrangement provided for by an 

i 8 In land title cases, for example, where Chinese legal concepts 
differed from the Japanese, separate laws and procedure were applied 
to them. (Mochizuki, K, Civil Admmistration in the Kwantung Gov- 
ernment, pp. 13-14, IdlO.) But in criminal cases, except for minor 
variations presumed to be more in accordance with Chinese ideas 
and practices of justice, Japanese substantive law and procedure came 
to be applied theoretically without distinction between Japanese and 
Chinese. (Asakawa, K. Yak Review, Nov. 1908, pp. 270-271.) In this 
the Japanese consulted precedents at Kiaochow and Singapore. It 
should be made clear here that no attempt is made anywhere in this 
study to pass judgment on Japanese administrative policy, or to 
describe the administrative system as such. This is a study of juris- 
dictional authority. 

The following ordinances specifically concern the law and procedure 
in civil and criminal cases involving Chinese residents of the Kwan- 
tung leased territory. A fundamental Imperial Ordinance, No. 213, 
1908, pertaining to " Court Procedure in Kwantung " (Arts. 1 to 3, 
and 77.) An Imperial Ordinance, No. 236, 1908, relating to " Adminis- 
tration of Fines and Corporal Punishment ". The following Kwantung 
Government ordinances: No. 51, 1908, Regulations for the Enforce- 
ment of Imperial Ordinance No. 213, 1908; No. 57, 1908, Regulations 
for the Enforcement of Imperial Ordinance No. 236, 1908; No. 274, 
1919, Rules for Summary Sentences; No. 25, 1907, Regulations for 
Sentences to Fines and Detention. On August 1, 1924, a new civil 
code was made applicable to Kwantung province, over Chinese as 
well as Japanese, requiring, inter alia, the registration de nova of 
land titles. 



ACQUIRED JUBISDIOTIOSTAL BIGHTS OF JAPAN 63 

exchange of notes between the two governments 
since Japanese can travel from treaty port to treaty 
port in China without special passport visas. 14 The 
scores of retired Chinese civil and military officials 
who reside in and about Dairen, especially at the 
Hoshigaura resort, are subject entirely to Japanese 
jurisdiction there. They are consequently free from 
pursuit or oppression by Chinese authorities except 
where the Japanese authorities might choose and 
no cases of such have come to the writer's atten- 
tion to grant the privilege of extradition. There 
is no extradition treaty made especially applicable 
to the leased territory. 

In a very real sense, however, a Chinese resident, 
in the Kwantung leased territory, is a " man without 
a country ". He is not a Japanese citizen, nor even 
a Japanese national, within the meaning of the or- 
dinances made applicable to the leased territory. He 
is subject to Japanese protection as long as he re- 
mains in the leased territory, but once having gone 
beyond its boundaries he is no longer subject to 
Japanese jurisdiction or protection of any sort. Not 
being a Japanese national, he is not entitled to a 
Japanese passport. Such Chinese are not considered 
proteges in the sense in which that term has had 
application in Siam. Legally, then, the Chinese resi- 

14 The Kwantung Government Ordinance No. 15, 1918, pertaining 
to aliens, provides (Art. 11) that nationals or subjects of any country, 
which does not require Japanese subjects entering that country to 
carry passports or certificates of nationality, shall not be required to 
carry passports or certificates of nationality in order to enter the 
leased territory of Kwantung. 



64 ACQUIRED JURISDICTIONS BIGHTS OF JAPAN 

dents may claim Chinese nationality even though 
they were born, and have always lived, within the 
Kwantung leased territory. No provision has been 
made to naturalize these Chinese as Japanese sub- 
jects. An interesting question arises in the case of 
Chinese residents who might choose to evade Japa- 
nese court procedure by leaving the leased territory 
and taking refuge on territory over which China has 
exclusive jurisdiction. In the absence of a specific 
extradition agreement it appears that a Chinese resi- 
dent could with impunity escape Japanese jurisdic- 
tion, though such property as he might possess in 
the leased territory might be subject to attachment. 18 
Another interesting matter relates to the subject 
of military service. It does not appear, that, under 
the circumstances, the Japanese Government would 
be within their rights in seeking to muster the Chi- 
nese residents of Kwantung into any form of com- 
pulsory military service except such as might by 

15 Certain parallels to this situation were evident in Kiaochow dur- 
ing German occupation. Chinese who resided there were not con- 
sidered German nationals, although they were subject to German 
protection and jurisdiction as long as they remained there. Special 
regulations were promulgated, however, by which Chinese residents 
might be naturalized as German subjects. In the absence of naturali- 
zation in a specific case, however, such Chinese residents were not 
entitled to German protection when they chose to leave the ter- 
ritory. (Pohl, Otto. Die Oberlassung von Kiaotschou seitens Chinas 
an das Deutsche Reich, pp. 23-24; 36-39; Mohr, F. W. Handbuch fur 
das Schutegebiet Kiaotschou, pp. 39-42; 71-78. The latter work is a 
compilation of decrees and laws for the German lease at Kiaoohow, 
the work having been done by Herr Mohr who had once been an 
assistant interpreter of the Kiaochow Government. The former was 
published at Leipzig, 1908; the latter at Tsingtao, 1011.) 



ACQUIRED JUEISDIOTIONAL BIGHTS O3 1 JAPAN" 65 

international law be sanctioned in time of war. Chi- 
nese sovereignty still prevails over the territory 
though all right to exercise it for the term of the lease 
has been waived. The military authority of the 
Japanese over the territory would seem to be re- 
stricted to the purposes defined in the convention of 
1898, which neither makes Chinese the nationals of 
the lessee, nor subjects them specifically to any form 
of compulsory military conscription. The exigencies 
of war, however, would justify the lessee in proclaim- 
ing martial law over the leased territory and en- 
forcing strict obedience from all residents, of what- 
ever nationality, within the territory. 16 

19 A curious development in connection with this question at 
Weihaiwei, under British jurisdiction until 1930, occurred when the 
" Chinese Regiment " was recruited by the British during the early 
years of occupation. During the Boxer Rising these Chinese troops, 
under British officers, actually acquitted themselves most efficiently 
in the campaign to relieve the legations in Peking. " The existence 
of the regiment was, however, an anomaly. The recruitment of Chi- 
nese subjects for the British army would have been of doubtful 
legality even if it had been confined to Weihaiwei itself, for Weihaiwei 
is not British territory but only British leased territory; but, as a 
matter of fact, the recruiting was done for the most part in purely 

Chinese territory, which made matters worse Anomalous 

though this enterprise may have been in international law, it never 
gave rise to any protests or caused any friction with the Chinese au- 
thorities, provincial or metropolitan." (Ker, W. P. Chinese under 
British Rule Hang Kong, Weihaiwei and Malaya, p. 41. Unprinted 
data paper for the Kyoto Conference, Institute of Pacific Relations, 
1929.) Sir Reginald Johnston, P. R. G. S., for many years H. M. 
Commissioner at Weihaiwei, and who was chosen for the unique post 
of tutor to the Young Empreor, also discusses this " Chinese Regi- 
ment " and characterizes it as " anomalous " . Lion and Dragon in 
Northern China, p. 460, 1910.) 

Allowing for the variations at Weihaiwei from the conventional 
clauses applicable to Kwantung, it may be noted that the former 



66 AOQXJIEBD JURISDICTIOBTAL, BIGHTS OF JAPAN 

These interesting questions as to the exact status 
of Chinese residents within the Kwantung leased 
territory should not be interpreted so as to confuse 
the general principle that Japanese jurisdiction is 
complete, for all practical purposes, over the prov- 
ince, whether for ordinary administration or for 
judicial matters. 

3. Position in the Japanese Empire. While the 
* Japanese Government has practically complete pow- 
ers of governing the Kwantung leased territory, it 
is interesting, and, from the point of view of Japa- 
nese constitutional law, important, to note that this 
territory is regarded under the Japanese Constitu- 
tion as one wherein a distinctly limited application 
of that constitution is enforced. Very much as Wei- 
haiwei before 1930 was administered by a High Corn- 
was considered "practically identical with that of a British Crown 
Colony though (owing to technical considerations) its official designa- 
tion is not Colony but Territory ". (Johnston, op. tit., p. 80.) Just 
as in Kwantung, all laws were enacted by the executive alone in the 
form of ordinances, and just as the fundamental or organic laws for 
Weihaiwei were promulgated by Orders in Council, so at Kwantung 
they are promulgated by the Emperor. Sir Reginald Johnston made 
clear that over the Weihaiwei leased territory "the Emperor of 
China retains theoretical sovereignty. This is expressly admitted by 
the British Government, which has declared that Weihaiwei is only 
a 'leased territory '; its people, though under direct British rule, 
are not in the strict legal sense ' British subjects V (Ibid., pp. 85, 
428.) As in Kwantung, an attempt was made to enforce Chinese 
customary law in cases where Chinese were concerned, (p. 435,) 

But Weihaiwei is no longer a British leased territory. It was 
formally retroceded to China on Oct. 1, 1930. (The London Times, 
Aug. 17, 1930; the North China Herald, Oct. 7, 1930; The Peking and 
Tientsin Times, Oct. 10, 1930. Rendition of Weihaiwei: Treaty 
Series, No. 50, 1930, London.) There remain in China the leased 
territories of Kwantung, Kowloon and Kwangchow. 



ACQUIRED JTJBISDICTIO2STAL BIGHTS OP JAPAN 67 

missioner through executive ordinances, acting un- 
der the provisions of orders in council which were 
the organic law for that leased territory, Weihaiwei 
itself being regarded under the British Government 
simply as a " leased territory ", but having prac- 
tically the status of a Crown Colony, 17 so the Jap- 
anese Government under their Constitution draw a 
distinction between Kwantung and the main islands 
of Japan. A similar practice has been widely fol- 
lowed within the British colonies, to a lesser degree 
within the French colonies, and is characteristic of 
Chosen and Taiwan, both of which are governed un- 
der organic acts promulgated by imperial decrees, 
and by Japanese law only to the degree to which the 
latter has been made specifically applicable by im- 
perial ordinance. 18 This practice was adopted by 
Japan for Kwantung province in accordance with a 
well-established principle of colonial administration 
of restricted application of the home constitution in 
colonies where native customs and laws vary widely 
from those for which the constitution was originally 
made applicable. 

The question as to the status of Kwantung within 
the Japanese Empire arose immediately after the 
acquisition of the leased territory in 1905, but, as in 
the case of Formosa from 1895 to 1905, there were 

17 Johnston, R. F. Lion and Dragon in Northern China, pp. 78, 80, 
85, 428. 

18 Takekoshi, Y. Japanese Rule in Formosa, pp, 26 ff.; Ireland, 
Alleyne. The New Korea, pp. 142 ff. This constitutional principle in 
colonial government seems to have been developed partly as a result 
of the influence of British colonial practice. 



68 ACQUIBED JUBISDICTIONAL EIGHTS OF JAPAN" 

rival views in Japan as to the degree to which the 
Japanese Constitution should be applied to the new 
territory where the population was, in the great 
majority, Chinese, whose customary laws were 
widely at variance with those of the Japanese. In 
1908 the status of Kwantung province was very much 
a matter of controversy in Japan, as the attention 
given the subject by the Bureau of Laws of the 1m- 
perial Cabinet and by the Japanese Diet indicates. 
After inquiry made by a committee of the House 
of Representatives on March 25, 1908, Dr. Okano, 
then chief of the Bureau of Laws, gave his interpre- 
tation of the subject as follows : 10 

** Kwantung should be regarded neither as a ceded terri- 
tory, said he, for it was understood that it should be restored 
to China at the end of the term originally stipulated between 
China and Kussia, nor as a result of a contract pure and 
simple, for the province was actually governed under Imperial 
Ordinances and under occasional agreements with China., 
which necessarily modified the terms of her original contract 
with Russia. The territory, therefore, was not properly a part 
of the Japanese Empire, and the Legislature had no voice 
concerning it, and yet the Empire exercised, through Imperial 
Ordinances, the right of government thereof; so that, to 
employ a phrase of a certain European jurist used in regard 
to leased territories, the province was, internationally con- 
sidered, a domestic territory, but, in the eye of the Constitu- 
tion, a foreign soil." 

In this interpretation it appears that Viscount 
Hayashi, then Minister for Foreign Affairs, con- 

19 Asakawa, K. " Japan in Manchuria." Yale Review, Nov. 1908, 
p. 271. 



AOQUIBED JUBISDICTIOHTAL EIGHTS OF JAPAN 69 

curred. 2 ? As a matter of fact, the first organic act for 
the government of Kwantung province was promul- 
gated as an Imperial Ordinance during July, 1906, 
under the constitutional principle, applicable alike 
to Formosa, Chosen and Kwantung, that the Em- 
peror shall determine by promulgation what por- 
tions of the general Japanese law shall be made 
applicable to these colonies or administered areas. 21 
Under Japanese constitutional law, supported by the 
broad ordinance-making power of the Japanese Em- 
peror (Article IX), the principle has been clearly 
developed that only such laws, passed by the Im- 
perial Diet, as have by specific ordinance been made 
applicable to given colonies or administered areas, 
have the force of law in such areas. 23 In view of the 
actual exercise of political responsibility by the 
Japanese Cabinet, therefore, the formulation of 
fundamental laws for these areas has devolved upon 
that body in behalf of the Emperor. As a result, 



. 272 

21 Imperial Ordinance No* 196. Official Gazette [Kwampo], Au- 
gust 1, 1906. (U. S. For. Rek., 1906, pp. 1051-9. This reference gives 
translations of additional ordinances.) 

22 With respect to Formosa, this principle came to be applied as 
early as 1904, the Government taking the position, in the case in- 
volving the removal of Chief Justice Takano Takenori, that "the 
provisions of the Constitution did not apply to Formosa ". (Take- 
koshi, op. cit., p. 32.) The Japanese Diet, as early as 1896, however, 
had passed a law providing that only such portions of the law as 
were promulgated by Imperial Ordinance should have force in 
Formosa. (Ibid., p. 24.) The same constitutional principle applies 
to Chosen. (Ireland, op. cit., pp. 143-144.) Similarly, the principle has 
always been applied with respect to Kwantung. (Mochizuki, K. 
Civil Administration in the Kwantvng Government, p. 11.) 



70 ACQUIRED JtTBISDICTION'AL BIGHTS OF JAPAN 

the constitutional law of Japan has come to recognize 
clearly that the Japanese Constitution does not apply 
with the same rigor in colonies and administered 
areas as in Japan proper. 

While the position accorded Kwantung under the 
Japanese Constitution has no bearing on the inter- 
national legal status of the leased territory, the 
actual form and authority of the Japanese adminis- 
trative system in Kwantung has no small significance 
for the Japanese residents there, directly affects the 
economic development of the area, and indirectly 
affects the foreign interests, especially foreign ship- 
ping companies, who have steamship services to and 
from Dairen. 

Whether Dairen, the chief trade port of Manchuria, 
is, for the purpose of applying the coastwise ship- 
ping laws of Japan, a Japanese coastal port has long 
been a subject of controversy, and one on which the 
Japanese ministries for foreign affairs and finance 
have at time differed. It appears that this question 
arose in August, 1906, and that the Ministry for For- 
eign Affairs presented the diplomatic corps at Tokyo 
with a statement that although the Kwantung leased 
territory was under Japanese jurisdiction the regu- 
lations governing coastwise shipping could not be 
applied to Dairen. Dairen was declared to be a free 
port, and, for the purposes of the application of the 
Japanese coastwise shipping laws, a colonial port. 28 

Manchuria Daily News, March 20, 1928; Nov. 18, 1929. The 
China Weekly Review, Nov. 30, 1929, pp. 476-478. 



ACQUIRED JURISDICTIOBTAL BIGHTS OJ 1 JAPA1ST 71 

But this view was for a long time challenged by the 
Ministry of Finance, and apparently by the Ministry 
of Communications, the former having replied to an 
inquiry from the British Ambassador at Tokyo in 
a statement of December, 1911, to the effect that 
Dairen was considered on the coast line of Japan. 
Again, as late as 1925, in reply to an inquiry from a 
British source, the Ministry of Communications 
stated that a steamer carrying cargo from a Japa- 
nese port destined to Dairen in Kwantung province, 
or to Chosen, Taiwan, Karafuto (Southern Sag- 
halien), and to the Japanese mandated islands in 
the Pacific, was operating in Japanese coastwise 
shipping and subject, therefore, to the Japanese 
coastwise shipping laws. 24 The application of this 
ruling would, of course, have excluded foreign ships 
from handling such coastwise cargo, and has, in fact, 
been a source of continual confusion for foreign 
shippers. 

Even as late as 1928 foreign shippers were kept 
in doubt as to the application of the early ruling of 
the Ministry for Foreign Affairs, the Kwantung 
Government, in particular, refraining from clarify- 
ing the matter. The earlier difference of interpreta- 
tion between the Ministry for Foreign Affairs and 
the Ministry of Finance, the latter being responsible 
for giving the instructions to the Japanese customs 
officials, was again in evidence in March, 1928, when 
Japanese shipping companies sought to have the 
Finance Ministry's ruling prevail. 



72 ACQUIRED JUEISDIOTIOlSrAL RIGHTS OF JAPAN 

A British vessel of the Peninsular and Oriental 
Steamship Company in March, 1928, carried a cargo 
from a Japanese port to Dairen: thus reopening the 
issue and calling forth protests of Japanese ship- 
ping companies, contesting the right of vessels of 
foreign registry to operate between Japanese ports 
and Dairen. The Dairen Shippers f Union urged upon 
the Kwantung Government in April to exclude for- 
eigners from the trade on the ground that " the 
sovereignty of the lessee country is in perfect exer- 
cise ", and Dairen, therefore, should be considered 
as a coastal port of Japan. 25 That this protest was 
entirely misinformed when it sought to justify the 
policy by attempting to claim that, because the ter- 
ritory was under Japanese jurisdiction, it was also 
subject to an unrestricted application of the Japa- 
nese Constitution, and of Japanese coastwise ship- 
ping laws in particular, is, of course, obvious. 
Whether those shipping laws apply to Kwantung 
province is purely a matter of policy to be decided 
by the competent Japanese authorities, and, as it 
seems quite impossible to divorce the issue from 
political questions, it would seem that the ruling of 
the Ministry for Foreign Affairs should prevail. 

This confusing controversy has not been finally 
settled even though a new test case arose when the 
" City of Derby ", a vessel of British registry be- 
longing to the Ellerman line, took aboard at Yoko- 
hama on the sixteenth of November, 1929, a cargo of 

26 Manchuria Daily News, March 20, 1928. 



ACQUIRED JXJBISDICTI01TAL EIGHTS OF JAPAN" 73 

six motor cars billed to Dairen in Kwantung prov- 
ince. The superintendent of customs at Dairen per- 
mitted the landing of the cargo. A protest was im- 
mediately made by local Japanese steamship com- 
panies which sought to f orf end foreign competition. 
The Ministry for Foreign Affairs, evidently consid- 
ering it a political question, in accordance with its 
original ruling of 1906 instructed the Finance Minis- 
try, which in turn instructed the Japanese customs 
officials, that the landing of the cargo was not a viola- 
tion of the Japanese coastwise shipping laws because 
Dairen was not considered a coastwise port of 
Japan. 20 

In spite of the fact that other somewhat similar 
cases have arisen recently, involving the issue as to 
whether or not Dairen is to be regarded as a coast- 
wise port of Japan, there does not seem to be an 
entirely definitive ruling on the subject by the Minis- 
try of Foreign Affairs, concurred in by the other 
departments of government, and communicated in 
decisive terms to foreign governments concerned. 27 

2 Manchuria Daily News, Nov. 18, 1929. Cf. The China Weekly 
Review, Nov. 30, 1929, p. 477. 

27 The Japanese Foreign Office seems to have taken the position in 
1931 that traffic, both passenger and freight, between Japan proper 
and Dairen, is open to all foreign ships; or, in other words, that this is 
not coastwise traffic. 



CHAPTER V 

EXTEATBBBITOEIAUTY AND THE KwABTTUBTG LEASE 

The fact that foreigners residing in the Kwantung 
leased territory are not entitled to trial, either by 
their own consular officers or in special courts, such 
as the United States Court for China, in cases aris- 
ing within the leased territory, throws considerable 
light on the scope and character of jurisdictional 
authority conceded in practice to the Japanese Gov- 
ernment in this territory. Although historically, and 
especially outside of official circles, there has been 
some confusion as to whether extraterritorial rights 
under the China treaties were also applicable to this 
and to other leased territories in China, it is quite 
evident that since 1905, at least, the uniform practice 
of the states having such form of qualified immunity 
from Chinese jurisdiction has been that these treaties 
do not apply to Kwantung. 1 Any foreigner commit- 
ting a crime or being the defendant in a civil process 
in Kwantung province is subject to trial in the local 
Japanese courts. 



r. W. W. Willoughby and Professor G. W, Keeton have ques- 
tioned the decision of Judge Milton D. Purdy in the case of U. S. v. 
A. W. Smtih, U. S. Court for China, Shanghai, 1925, in which he held 
that the United States Government had no jurisdiction to try in this 
court cases involving American citizens arising in the Kwantung 
leased territory. (Cf. Willoughby, W. W., Foreign Rights and In- 
terests tn, China, Vol. I, p. 482, rev. ed.; Keeton, G. W. The Devel- 
opment of E&raterrtiorialitv in China, Vol. I, pp. 307-308.) 

74 



BXO?BATEEBITOBIALITY AND THE KWANTTTBTG LEASE 75 

In view of the attitude of the Russian Government 
with respect to this leased territory, explicitly com- 
municated to the foreign powers during 1903, it is 
somewhat surprising that so much confusion should 
early have arisen over this matter. As late as 1910 
an American student of Manchurian affairs, usually 
a close observer of the realities, but also occasion- 
ally inclined to hasty generalizations, wrote that dur- 
ing his stay in Dairen he had had the assurance of 
one of the foreign consuls that " it had not yet been 
made clear how far the scope of Japanese juris- 
diction extended, and whether or not, it included 
authority to arrest and try foreigners for criminal 
offences ".* As a matter of fact, no civil suit involv- 
ing exclusively foreigners seems to have come before 
the Japanese local courts in the territory until 1911. s 
The uncertainty of the consuls, however, as to their 
jurisdiction in the leased territory may be somewhat 
understandable when it is realized that as late as 
1925 an attempt of .the counsel for an American 
plaintiff to bring suit in the United States Court for 
China in Shanghai was made on the ground that 
Dairen was not excluded from China for the purpose 
of applying American consular jurisdiction under 
the China treaties. 4 Even in 1926 and 1927 the writer 

2 Harrison, E. J. Peace or War East of Baikal? p. 274. 

8 Emmern v. Sietas and Co. Brought by plaintiff, Mr. Emmera, a 
Russian resident of Harbin, against the company, which had its 
headquarters in Tsingtao in the German lease. It involved the ques- 
tion of transfer of title to the Kwantung Brewery at Port Arthur. 
{Manchuria Dotty Neto*, Sept. 14, 1911.) 

* U. 8. v. A. W. Sntitb, 1925. U. 8. Court for China, Cause No. 2331 ; 
Criminal No. 947. 



76 BXTBATEBEITOBIALITY AND THE KWANTTJBTG LEASE 

was informed in Dairen that certain American busi- 
ness firms there had to be instructed by the American 
consul that they were obligated to pay whatever 
taxes were levied upon them by the local Japanese 
authorities. 

But whatever the confusion among the foreign 
consuls at Dairen who might, however, have been 
expected to be informed of the attitude of the Ameri- 
can Government, expressed very clearly as early as 
1900, and concurred in by all foreign powers at that 
time except Japan it is quite evident that the offi- 
cial attitude of all states having extraterritorial 
privileges in China and consular representation at 
Dairen has been entirely uniform and consistent ever 
since 1905. In 1900 the Department of State of the 
United States clearly committed the American Gov- 
ernment to the position, then expressed by Secretary 
Hay in his instructions to Minister Conger at Peking, 
dated February 3, to the effect that the United States 
did not claim for their nationals in any of the leased 
territories in China such privileges as were accorded 
them in the extraterritorial clauses of the China 
treaties. 5 

This early interpretation by the Solicitor of the 
United States Department of State, since it has been 
the basis for the consistent policy of the American 
Government in this matter of jurisdiction over Amer- 

8 U. 8. For. Rela., 1900, p. 387. Cited by Willoughby, op. tit., Vol. I; 
p. 480. This statement of official policy and interpretation had been 
prepared by Mr. Van Dyne, Assistant Solicitor of the Department 
(Cf. Moore's Digest, Vol. II, p.. 640.) 



EXTBATBBBITOBIALITY AND THE KWAlSTTtTBTG LEASE 77 

lean nationals in the Kwantung leased territory ever 
since, deserves quotation : * 

" As it is expressly stipulated in the lease that China re- 
tains sovereignty over the territory leased, it could doubtless 
be asserted that such territory is still Chinese territory and 
that the provisions of our treaties with China granting con- 
sular jurisdiction axe still applicable therein. But in view 
of the express relinquishment of jurisdiction by China, I infer 
that the reservation of sovereignty is merely intended to cut 
off possible future claim of the lessee that the sovereignty 
of the territory is permanently vested in them. The intention 
and effect of these leases appear to me to have been the relin- 
quishment by China, during the term of the lease, and the 
conferring upon the foreign power in each case of all juris- 
diction over the territory. Such relinquishment would seem, 
also, to involve the loss by the United States of its right to 
exercise consular jurisdiction in the territories leased ". 

The grounds in law for this interpretation are, 
therefore, clearly stated in the department's memo- 
randum: " in view of the express relinquishment 
of jurisdiction by China ", within the leased terri- 
tory, and the conferring of that authority upon the 
lessee, foreign consular authorities cannot be per- 
mitted to exercise jurisdiction under exequaturs re- 
ceived from the Chinese Government. The practice 
in Kwantung has always been that foreign consuls 

tf. S. For. Rels., 1900, p. 387. "The Powers from the first took 
the position that the leases of Chinese territory transferred complete 
jurisdiction to the lessee and that third states could not exercise 
extraterritorial jurisdiction within them, thus apparently the lessee 
was alone responsible toward other states for incidents in the terri- 
tories during the life of the lease/' (Wright, Mandates under the 
League of Nations, p. 800.) 



78 EXTEATBEBITOBIALITY AKD THE KWANTTnTO LEASE 



there must receive their exequaturs from the lessee, 
Russia until 1905, Japan thereafter. 7 In a covering 
letter of Secretary John Hay, transmitting the above 
memorandum to Minister Conger at Peking, the fol- 
lowing additional statement of official policy was ex- 
pressed : 8 

" The intention and effect of China's foreign leases having 
apparently been the relinquishment by China . during the 
term of the leases and the conferment upon the foreign power 
of all jurisdiction over the territory, such relinquishment and 
transfer of jurisdiction would seem also to involve the loss by 
the United States of its right to exercise extraterritorial con- 
sular jurisdiction in the territories so leased, while, as you re- 
mark, as these territories have practically passed into the con- 
trol of peoples whose jurisprudence and method are akin to 
our own, there would seem to be no substantial reason for 
claiming the continuance of such jurisdiction during the 
foreign occupancy or tenure of the leased territory ." 

Immediately upon the receipt of this statement of 
interpretation the American Minister at Peking 
directed all American consuls within such leased ter- 
ritories to exercise no consular authority therein 
under the treaties granting extraterritorial juris- 
diction to Americans in China, and cautioned them 
against performing even ordinary non- judicial con- 
sular acts, which, under Chinese exequaturs, they 
would be permitted to exercise outside such terri- 
tories. 9 

7 The United States Government had .no consular representation 
.at Dalny (Dairen) until after the Russo-Japanese war, the nearest 
consul being at Newchwang, more properly, Yingkow. 

U. 8. For. Rets., 1900,, pp. 387 ff. 
p. 389. 



EXTBATBRBITOEIALITY AND THE KWANTUNG LEASE 79 

When, therefore, the Eussian Government an- 
nounced that foreign consuls would be admitted to 
Dalny, now Dairen, they officially communicated to 
foreign governments that such consuls would have 
no rights beyond those accorded them throughout 
Eussian territory. 10 The official Eussian view was 



L, 1903, pp. 84-85. On Jan. 17/30, 1903, the Russian Foreign 
Office sent to Mr. Robert 8. McCormick, American Ambassador at 
St. Petersburg, an official statement as to their jurisdiction in the 
Kwantung leased territory, including instructions that foreign con- 
suls were to apply for their exequaturs to the Russian Government. 

a The Imperial Government has decided to admit the presence of 
consular representatives of the powers in the aforesaid city [Dalny 1 
on the following terms: 

"The exequatur required for the assumption of functions by the 
representatives in question must be asked for, in the ordinary way, 
through the foreign office in St. Petersburg. The jurisdiction of these 
representatives extends throughout the whole territory of Kwang- 
tung [Kwantung], to the exclusion of Port Arthur and other fortified 
points, which will be designated by the local military authorities. 

" Considering that Russian legislation is enforced throughout the 
said territory and that Russian tribunals are established there, foreign 
consuls at Dalny will have no rights and prerogatives beyond those 
which are accorded to them throughout the Russian Empire. In the 
interests of good administration of affairs, these consuls will deal 
directly with the administrative authorities of the territory in all 
questions falling within their province. 

"No consular representatives of other powers, excepting the one 
established at Dalny, shall be entitled to intervene in the affairs of 
his nationals in the territory referred to/ 7 (U. S. For. Rels., 1903, 
p, 708.) This communication was sent to the U. S. State Department 
under date of March 20, 1903. 

In the same year a case arose involving an American subject 
wishing to sue a Russian for damages sustained in connection with 
a real property lease near Newchwang (Yingkow). The Russian con- 
sul there informed American Consul H. B. Miller that the case would 
have to be tried at Port Arthur. Mr. Miller referred the case to 
Minister Conger, March 17, 1903, and questioned the right of the 
Russians to compel the trial of the case in the Kwantung leased 



80 EXTRATERRITOBIALITY AND THE KWANTUNG LEASE 

tacitly approved by the United States with respect 
to a case then pending, which was adjusted on the 
basis of the interpretation contained in the Eussian 
official memorandum communicated to Ambassador 
McCormick at St. Petersburg during January, 1903. 
All powers accepted the Eussian interpretation as 
stated, with the exception of Japan who declined to 
admit the Eussian claim. 11 The Japanese Govern- 

territory since this was "under the control of Russian authorities 
governed by Russian law". Minister Conger, replying, stated that, 
in his opinion, the Russians could require the American to sue in 
Port Arthur if he wished to bring proceedings against a Russian 
subject, declaring that " in the absence of any treaty or other agree- 
ment between the United States and Russia on the subject, if any 
American wishes to invoke the aid of a Russian court he will have to 
go wherever Russia has established such courts". Mr. Conger re- 
ferred the matter to the State Department, but it does not appear 
that the Department altered this official view. Three days later Mr. 
Conger received and despatched to the American consul at New- 
chwang a copy of the Russian Foreign Office declaration as to their 
jurisdiction in Kwantung. (U. S. For. Reh., 1903, pp. 60-61.) 

Ibid., pp. 387-388. In 1899 Mr. A. A. Adee requested Minister 
Conger to advise the Department of State as to the attitude of the 
powers toward this matter of consular jurisdiction in the leased terri- 
tories. Mr. Conger replied, Dec. 11, 1899, that " all of them, except 
the Japanese, agree that the control over all of these leased ports, has 
during the existence of the lease, passed as absolutely away from the 
Chinese Government as if the territory had been sold outright, and 
that they are as thoroughly under the jurisdiction of the lessee 
governments, as any portion of their home territory and thus consuls, 
accredited to China, would not attempt to exercise jurisdiction in 

any of the said ports The Japanese claim that sovereignty is 

too important a matter to pass thus with a lease, and say that China 
can, if she wishes, surrender jurisdiction over her own people, but 
they do not agree that these lessee governments shall or can exercise 
jurisdiction over other foreigners in the leased territory. However, 
no case has yet arisen for them to test the matter." (U. 8. Far. Rels., 
1900, pp. 383 ff.) 



BXTRATEBBITOBIALITY AND THE KWANTUNG LEASE 81 

ment reversed their official attitude after they ob- 
tained possession of the Kwantung lease in 1905. 

Whatever may have been the confusion over this 
question of consular jurisdiction in the leased terri- 
tories in general, and in Kwantung province in par- 
ticular, before 1925 and sufficient details have been 
presented above to substantiate the assertion made 
at the outset that officially there has been entire 
uniformity and consistency in the policy, particularly 
of the American Government, ever since 1900 the 
matter seems to have been settled definitely, as far as 
the United States is concerned, with respect to Kwan- 
tung, in the leading case on the subject which came 
before the United States Court for Shanghai in 1925, 
No subsequent cases have arisen, and the precedent 
there established, that in cases arising between 
American nationals in the Kwantung leased terri- 
tory they are subject exclusively to Japanese juris- 
diction, will presumably be followed in future. 12 



7. S. v. A. W. Smith, 1925. U. S. Court for China; Cause No. 
2331; Criminal No. 947. 

Case of U. S. v. A. W. Smith 

This case came before the U. 3. Court for China at Shanghai on 
March 2, 1925, on a motion of counsel for the defendant, Arthur W. 
Smith, an American citizen, to quash an information filed in the 
court on Oct. 16, 1923, on the ground that the accused, Mr, Smith, 
charged with having committed an assault with a dangerous weapon 
upon one, Paul C. Naile, at Dairen, Manchuria, Republic of China, 
was not subject to jurisdiction of the court because the alleged crime 
was committed in Duiren, " a place within the jurisdiction of the 
Empire of Japan, and not of China ". The district attorney, in oppos- 
ing the motion, conceded that Japan had succeeded to the Russian 
lease in 1905, and that " the Chinese courts ceased to function in 



82 BXTBATBRBITOBIALITY AND THE KWANTUNG LEASE 

In this case of U. 8. v. A. W. Smith, which arose 
out of assault and battery committed upon three 
American members of the crew of the merchant ves- 
sel ' ' Patrick Henry > ' in October, 1923, by the master 
of the vessel, and which came before Judge Milton 
D. Purdy of the United States Court for China at 
Shanghai, in April, 1925, the court had to face 
squarely the question of whether or not, in cases 

such leased territory " during the Russian occupation. He contended, 
however, that "notwithstanding such apparent relinquishment of 
jurisdiction on the part of China, the United States never lost its 
extraterritorial jurisdiction over crimes committed by American citi- 
zens in such leased territory, and that the United States now has the 
right to try and punish American nationals for crimes and offenses 
which they may commit within such territory". 

The court stated the case as follows: "The defendant, a captain 
of an American ship, while in a dancehall in the city of Dairen, on 
the 6th day of October, 1923, is alleged to have committed an assault, 
with a dangerous weapon upon the person of one, Paul C. Naile. It 
does not appear that Smith was arrested for this offense while in 
Dairen, either by the Japanese, or by the American authorities, but 
when his ship arrived in Shanghai, on or about the 16th day of 
October, 1923, an information was filed before the United States 
Commissioner for China for preliminary examination. Upon such 
preliminary examination, defendant's counsel objected to further 
proceedings in the matter, upon the ground that the court was with- 
out jurisdiction to bind the defendant over for trial before the United 
States Court, for the reason that Dairen was situated within that 
portion of the Liaotung Peninsula known as the leased territory, and 
was under the exclusive jurisdiction of the Empire of Japan. The 
^United States Commissioner rendered an opinion in writing, in 
which he rejected such contention, and held that the United States 
Court for China had full jurisdiction to try the defendant for the 
offense charged, and inasmuch as there was sufficient evidence to 
make out a privw facie case against the defendant, he ordered that 
the defendant be held for trial before the United States Court for 
China. I am now called upon, in determining this motion, to review 
the conclusions reached by the Commissioner in that decision, and 



EXTRATEBBITOBIALITY AND THE KWABTTU2STG LEASE 83 

arising between two Americans in the Kwantnng 
leased territory, jurisdiction was with the court or 
with the Japanese authorities. The Japanese author- 
ities had refrained from assuming jurisdiction in this 
case merely out of comity for the United States Gov- 
ernment, although without a specific waiver of jur- 
istic right in the matter. United States Court Com- 
missioner, Mr, Lurton, in the interval before actual 

to decide ' de novo' whether this defendant should now be dis- 
charged or whether he must stand trial under the information which 
has been filed against him." (All quotations in footnote above are 
from an official copy of the opinion in this case rendered by Judge 
Milton D. PUrdy, April 28, 1925, as communicated personally to the 
writer under covering letter from Judge Purdy, dated July 26, 1926, 
addressed to Peking.) 

A more intimate version of the circumstances which gave rise to 
this case would include the following details, obtained by the writer 
from official sources in Dairen. On Saturday night, October 6, the 
members of the crew of the U. 8. S. B. Patrick Henry were carousing 
in the Taizen Restaurant in Dairen, when A. W. Smith, the skipper 
of the vessel, entered, and, after preliminary exchanges of words, 
proceeded to batter three members of his crew with a Benedictine 
bottle, each sustaining serious head wounds. The Japanese police 
entered the restaurant, stopped the brawl, and took temporary cus- 
tody of the disturbers of the peace. Consul Eli Taylor on October 7, 
requested of Mr. Moriwaki, of the Japanese police station, that the 
men be released on condition that the consul take the responsibility 
for seeing that justice was done in the case. The request was granted 
as a matter of comity. Paul C. Naile, in behalf of the three, brought 
suit subsequently in Shanghai. 

It is clear that the Japanese had the right to make the arrest of 
these men, even though they were foreigners, and that the Japanese 
authorities in this case, as in numerous such cases, usually turn the 
accused over to the American consulate for attention, though they 
are not required by international law to do so. The local authorities 
here are indisposed to take action in cases where crews of foreign 
ships are involved, but in this instance the injury to one of the men 
was so serious that they felt compelled to do so. 
8 



84 BXTBATEBBITORIALITY AND THE KWAKTTJITG LEASE 

consideration of the case in the Shanghai court, had 
filed an opinion in which he held that Captain Smith 
was amenable to prosecution on the ground that the 
United States had never lost its extraterritorial 
privileges in the Kwantung leased territory. 13 Judge 
Purdy reversed this opinion as being contrary to fact 
and law. 

Judge Purdy, after quoting the provisions of the 
American treaty of 1844 (Wanghsia), providing for 
extraterritorial jurisdiction by American consular 
officers, stated that the application of such provisions 
to territories over which China subsequently re- 
linquished jurisdiction could not be contended, since, 
in cases where such relinquishment clearly conceded 
jurisdictional authority to a foreign state, it would 
be patently contrary to the purpose of the original 
extraterritorial clauses to attempt to enforce them 
outside Chinese jurisdiction. Among such territories 
over which China had relinquished jurisdiction were 
the leased territories, including Kiaochow, "Weihai- 
wei and Liaotung. He then quoted the clause of the 

"After reversing Commissioner Lurton's opinion, Judge Purdy, 
upon inquiry from the writer, wrote him as follows: "When the 
case came before me for trial the same objection was raised by de- 
fendant's counsel, and I took a different view of the law from that 

expressed by Commissioner Lurton The question appears to 

me BO plain as to admit of very little argument, and I am inclined to 
think that after you and .... have given the matter the considera- 
tion which I have given it, that you will agree that I am right in the 
conclusion which I have reached in my opinion and decision." (Pri- 
vate letter to the author, dated Shanghai, July 26, 1926.) 



BXTBATBERITOBIALITY AND THE KWAjNTTTJNG LEASE 85 

original lease convention of 1898 by which Russia 
was given " the. entire military command of the land 
and naval forces and equally the supreme civil 
administration " of Kwantung, noting that the sov- 
ereign rights-of China were, however, specifically re- 
served to the lessor. " This language has furnished 
ground for the argument that Chinese sovereignty 
over this leased territory was never intended by the 
contracting parties to be surrendered by China to 
Russia, and for that reason, foreign powers, such as 
the United States, did not lose extraterritorial rights 
over their nationals within such leased territory. But 
it seems that such a construction of this provision of 
the treaty was not only disavowed by Russia shortly 
after the treaty was negotiated, but that Russia's 
interpretation of this provision was acquiesced in by 
practically all the nations which at that time enjoyed 
extraterritorial rights in China. " u The court then 
quoted the Hay instructions to American consuls, 
and the memorandum of Assistant Solicitor Van 
Dyne on the point, dated February 3, 1900. 15 It was 
evident, therefore, that the United States Govern- 
ment had conceded to the Russians their right, under 
the regulations governing the appointment of for- 
eign consuls to the Kwantung leased territory of 
1903, to exercise sole judicial authority. 

14 A more accurate statement of the situation would seem to have 
been that, although China retained sovereignty over the leased 
territory, all jurisdictional rights for the term of the lease were con- 
ferred on the lessee. 

V. 8. For. Rek., 1900, p. 387; 1903, pp. 84-86. 



86 EXTBATEBBITOBIALITY AND THE KWAtfTUNG LEASE 

Judge Pnrdy then described the manner of acqui- 
sition of these same rights by Japan in 1905, stating 
that although the original lease was to expire in 
1923, the Japanese Government, in 1915, " made cer- 
tain demands upon China, which China seems to have 
acquiesced in with considerable reluctance, and dur- 
ing the negotiations, our State Department advised 
China that the American Government would insist 
upon the reservation and protection of certain Amer- 
ican rights in Manchuria ". He continued: " I do 
not find, however, that America's protest to China, 
at that time, involved in any manner a re-assertion 
of extraterritorial rights on the part of the United 
States in the territory covered by this lease, which 
rights had been lost by the United States in 1898, as 
pointed out by Assistant Solicitor Van Dyne in his 
memorandum, when China relinquished jurisdiction 
to Russia over this territory for a period of twenty- 
five years. " He, therefore, expressed the judgment 
of the court as follows : 

"In view of this attitude of our Department of State, 
which has been uniformly observed for more than a quarter of 
a century, and in view of a similar attitude having been ob- 
served, with respect to this same matter during the same 
period, by all of the other nations having extraterritorial 
treaties with China, I find no difficulty in reaching the con- 
clusion that this court is without jurisdiction to try this 
defendant for the crime charged in the information, and that 
the motion to quash, should be granted. 

* As I view it, the question involved is political rather than 
judicial and as the political, or administrative, branch of our 
Government has declared, in unequivocal terms, that our 



EXTEATEBEITOBIALITY AffD THE KWASTTUHTG LEASE 87 

nationals have no longer extraterritorial rights within this 
leased territory, it seems to me that it is incumbent upon the 
courts to recognize and give effect to such declaration. Any 
other course might be fraught with international complica- 
tions and consequences of a very serious character." 

This, then, was a "political question " in the eyes 
of the court, one in which, the court was bound by 
the official attitude of the executive department. The 
diplomatic significance of this case, while it was 
pending decision in Shanghai, was such that it was 
imperative to have the view of the State Department 
clearly re-stated, and there is evidence that the 
American consul-general in Shanghai, Mr. Edwin 
S. Cunningham, had obtained such a statement from 
the department during October of 1923, and had him- 
self expressed the opinion that, in view of the gen- 
eral recognition that Japan had jurisdiction in Dai- 
ren it was quite impossible to concede the view of 
the court commissioner and of the United States 
district attorney in claiming jurisdiction for the 
court in Shanghai. Obviously, the opinion of the 
commissioner and of the district attorney was en- 
tirely irreconcilable with the facts which had been 
admitted in practice at Dairen since 1900. WMLe the 
opinion of Judge Purdy was naturally guided by the 
fact that this was a political question in the eyes of 
the court, the decision itself is nevertheless, reason- 
able, based as it was on strictly juristic grounds. 

These juristic grounds are quite clear, and entirely 
in accord with the de facto situation in the Kwan- 
tung leased territory for a quarter century. With 



88 EXTBATEEEITOBIAI^TY AND THE KWANTTJNG LEASE 

the transfer of tlie Kwantung or Liaottmg territory 
to Russia under the lease convention of 1898 the 
instrument of transfer clearly contained articles con- 
ferring practically complete jurisdiction upon the 
lessee state, Russia. Consequently, where Chinese 
jurisdiction no longer existed, for the term of the 
lease, extraterritorial jurisdiction no longer existed 
either, for there could not be this exception to some- 
thing which did not itself exist. Extraterritoriality 
for foreigners in Japan had long since been abol- 
ished, and foreigners, therefore, were naturally as 
subject to Japanese trial in Dairen, when the Japa- 
nese acquired the lease in 1905, as if they resided in 
Tokyo or Kobe. 

The conclusion is obvious that, in so far as leased 
territories in China are concerned, the question of 
powers of consular officers is not to be determined 
by inquiring who possesses sovereignty over them, 
but rather who possesses jurisdiction. Although 
China remains sovereign over the Kwantung leased 
territory, which is to say that China has a right to 
recover the territory eventually, foreign consuls, 
nevertheless, receive their exequaturs from the lessee 
state. 

Professor W. W. Willoughby, after referring to 
the conflicting opinions of Commissioner Lurton and 
Judge Purdy in the case of United States v. A. W. 
Smith, concludes, without stating his reasons there- 
for, that " from a juristic point of view " that of 



BXTEATEEEITOBIALITY AND THE KWANTUBTG LEASE 89 

Judge Pnrdy in this case " is not fully convinc- 
ing ", 16 This criticism would seem, however, to have 
been made on the assumption that the possession of 
sovereignty over the territory by China should be 
the determining factor in deciding whether the extra- 
territoriality treaties of foreign states with China 
apply therein, or possibly on the assumption that the 
actual exercise of jurisdiction by the lessor state is 
greater than, under the provisions of the original 
lease convention, it really is. Dr. "Willoughby also 
cites the Lurton opinion to the effect that " China 
had given to the United States extraterritorial 
rights and could not diminish them by an agreement 
made with another party [Japan], to which the 
United States was not a party ", 1T 

With regard to this latter position it may be said, 
however, that, in strict logic from this premise, it 
would have to be held that China could not enter 
into a treaty with a single foreign state transferring 
title in perpetuity and full sovereignty to that state, 
simply because by so doing the rights of third parties 
to extraterritorial privileges within such territory 
would be abrogated. This position would, of course, 
be entirely untenable since, as a legal proposition, 
China, as any other state, possesses the right to dis- 
pose of her own territory as she sees fit, except where 

16 Willoughby, W. W. Foreign Rights and Interests in China. 
Vol. I, p. 482. 
U Ibidem. 



90 BXTBATEBBCTORTATiTTY AND THE KWANTUNG LEASE 

there may be specific conventions with foreign states 
with regard to non-alienation. 18 

The extraterritorial treaties with China have 
never been interpreted as constituting any limita- 
tion npon China's sovereign right to dispose of any 
portion of her territory as she sees fit, and the United 
States Government has never taken the position that, 
by the creation of these leased territories, within 
which it has been generally accepted that extraterri- 
torial rights are not applicable, any American rights 
under treaties with China have been impaired. 

The opinion of Commissioner Lurton was given 
on the assumption that the sovereignty retained by 
China over the Kwantnng lease also carried with 
it jurisdictions! rights, and that in 1915, when Japan 
obtained the extension of the lease to ninety-nine 
years in a treaty and exchange of notes with China, 
China did not concede complete jurisdiction to Japan. 
A glance at this treaty and exchange of notes will in- 
dicate that, with respect to the matter of the leased 
territory, the subject of jurisdiction is not even 
raised. These agreements were entered into on the 
assumption that the status quo with respect to juris- 
diction should continue, after 1915, for a prolonged 
period. While this opinion of the United States 
Court Commissioner at Shanghai previous to the de- 

18 " .... The State may go to any extent in the delegation of the 
exercise of its powers to other public bodies, or even to other States; 
so that, in fact, it may retain under its direction only the most meagre- 
complement of activities, and yet not impair its Sovereignty." (Wil- 
loughby, W. W. An Examination of tte Nature of the State, p. 196.) 



EXTBATBEBITOBIALITY AND THE KWAffTUNG LfiASE 91 

cision of the court itself in 1925 did not have the 
force of a judicial determination, it has since been 
shorn of any importance by the adjudication of the 
specific case in the United States Court for China 
before Judge Purdy. In that opinion, the court took 
the view that, while the American Government had 
in 1915 reserved certain rights under these agree- 
ments, the protests of the government did not in- 
volve " in any manner a re-assertion of extraterri- 
torial rights on the part of the United States in the 
territory covered by this lease, which rights had been 
lost by the United States in 1898 ' V 9 

As to the contention that rights under extraterri- 
toriality are derivable in leased territories rather 
from the state which legally possesses sovereignty 
than from the state which has general control of ad- 
ministration and jurisdiction within the territory, it 
may be said that, in the case of the Ewantung lease 
in particular, this assertion is contrary to the uni- 
form practice of all the powers since 1905, and that m 
strict law it is more reasonable to hold the contrary. 
An analysis of the true meaning of the reservation 
of sovereignty to China in the case of the Kwantung 
lease reveals that that reservation can mean nothing 
beyond a declaration of the ultimate right to recover 
the territory at the expiration of the lease. Until 

19 Mr. Paul Heaton, in an article on " The Jurisdiction of American 
Courts in China ", characterizes the Lurton opinion as " an interest- 
ing, if somewhat doubtful" exception taken to the official position 
of the United States Government. (Chinese Social and Political 
Science Review, Jan., 1928, p. 42.) 



92 EXTBATERBITORIALITY AND THE KWAITTUNG LEASE 

then, " entire military command of the land and 
naval forces and equally the supreme civil adminis- 
tration " of the territory is conferred upon the les- 
see. China has reserved no rights with respect to the 
conduct of foreign relations of this territory, except 
such as are involved in the single question of re- 
covery of the territory itself. Customs control is 
specifically conceded to the lessee for the territory. 
In practice, the lessee has been given complete 
authority to determine the question of entry of na- 
tionals of third states within the territory. In war, 
the leased territory has been regarded as as much 
the territory of the lessee as any integral portion of 
its domain. Under these circumstances it is apparent 
that complete jurisdiction, whether for internal or 
external purposes, is within the province of the lessee 
state. 

These factors, which give evidence that it would 
be patently impossible for the state which possessed 
sovereignty, but without any right to exercise it for 
the period of the lease, to accept responsibility for 
that territory's relations with third states, consti- 
tute a realistic criticism of the proposal of Sir 
Thomas Barclay, an eminent English publicist, that 
the lessor state should remain responsible for all 
circumstances which arise on a leased territory vis- 
a-vis third states and their nationals. 20 His proposal 

2 o"L'Etat bailleur restera responsable de tous faits qui se pro- 
duiront sur le territoire loue", vis^a-vis des tierces puissances et de 
leurs ressortissants." This was the proposal of Sir Thomas Barclay 
at the session of the Institute of International Law held at Florence 



EXTRATERBITOBIAIJTY AND THE KWAITTTJNG LEASE 93 

would be entirely unworkable if an effort were made 
to apply it to the Kwantung leased territory, and 
obviously takes no account of the fact that, in this 
case, the possession of sovereignty carries with it 
no rights to exercise any form of administration 
within it. The proposal of Sir Thomas Barclay was 
evidently made on the assumption that the lessor 
state, because nominally sovereign, could in practice 
effectively deal with third states with respect to mat- 
ters of foreign relations, an assumption which, in 
the case of the Kwantung lease, is invalid. 21 

in 1908. (Yang, Lon, Les Territovres a bail en CMne, p. 103.) In 
criticism of this proposal it may be said that the practice of the 
European powers, in situations which may be taken as for this pur- 
pose analogous, is entirely contrary to the proposal of Sir Thomas. 
When AustriarHungary, after 1879, entered into conventional agree- 
ments with foreign states on the assumption of possession of the 
right to establish courts of law for the residents of Bosnia and Her- 
zegovina, which were territories occupied and administered by the 
dual monarchy, foreign states withdrew their claims to extraterri- 
torial jurisdiction within these provinces which otherwise they would 
have had under the Turkish capitulations. (Westlake, J. Inter- 
national Law, Vol. I, pp. 135 ff.) Bluntschli particularly contended 
that this was the only realistic view which could be taken. Nor is it 
necessary to claim that leased territories are "disguised cessions" 
to hold this view. 

21 The realities of the situation are better expressed by Professor 
Quincy Wright as follows: " The Powers from the first took the posi- 
tion that the leases of Chinese territory transferred complete juris- 
diction to the lessee and that third states could not exercise juris- 
diction within them, thus apparently the lessee was alone respon- 
sible toward other states for incidents in the territories during the 
life of the lease." (Wright, Quincy. Mandates under the League of 
Nations, pp. 80-81.) (Of. U. S., Naval War College: Internatioal 
Law Situations, 1902, pp. 28-35.) 



94 EXTBATEBEITOBIALITY AND THE KWANTTTNG LEASE 

The actual practice in leased territories in China 
including Kwantung is by no means one which finds 
no justification in well-recognized principles of inter- 
national law. It is based, first, on the principle that 
sovereignty can be and is frequently divorced from 
the actual exercise of jurisdiction within a given ter- 
ritory. 22 In the second place, it is based on the neces- 
sity of holding that state which actually is in pos- 
session of governmental authority over the territory 
responsible for injuries to nationals of third states. 28 
To hold the state possessing sovereignty over 
the leased territory responsible to third parties 
would be to create a manifest injustice to that state, 
for the lessor, having no police authority, within the 
area, could not assume the obligations expected of it. 

This view appears the more reasonable in law the 
moment one proceeds to vision a situation which 
would result from requiring foreign consuls to obtain 
their exequaturs from the Chinese Government in 
order to exercise their authority at Dairen. Such 
a situation would be patently anomalous and un- 

22 " International lawyers should experience no difficulty in dis- 
tinguishing between legal sovereignty and the actual exercise of 
rights of jurisdiction." (Lauterpacht, op. cit^ p. 189.) (Of. Wright, 
op. cit., pp. 372-373.) 

28 " States may hold a particular authority responsible for injuries 
in a given territory without intending to recognize the latter as sover- 
eign of the territory, but merely of the administration. The lessee, 
for instance, is held responsible for international delinquencies in 
leased territory, and the protector is usually held responsible for 
such incidents in a protectorate. Thus the practice in regard to re- 
sponsibility is not conclusive evidence of recognition of sovereignty." 
(Wright, op dt. f p. 607.) 



BXTEATBEBITOBIALITY AND THE KWANTTJtfG LEASE 95 

workable. 3 * The matter of consular residence and 
jurisdiction in the Kwantung leased territory is, 
therefore, declaratory of the fact that under the 
agreements with respect to the lessee's jurisdictional 
authority in the territory, and in accordance with the 
established practice, Japan's jurisdictional rights 
there are practically unlimited. A change in the 
powers of foreign consular officials in China would 
have no effect on the status of consuls at Dairen, for 
in the leased territory they must receive their exe- 
quaturs from the Japanese, not the Chinese, Gov- 
ernment. 28 

2 * I find, therefore, no difficulty in agreeing with the conclusion of 
Dr. Hsia Ching-lin that "during the period of the lease, the other 
power's extraterritorial jurisdiction stands or falls together with the 
territorial sovereign's or lessor's jurisdiction". I cannot, therefore, 
agree with his contradictory statement that nationality should be the 
" determining element in the matter of jurisdiction ". (Hsia, Ching-lin. 
Studies in Chinese Diplomatic History, pp. 109-110.) China clearly 
waived jurisdiction over the Kwantung leased territory in 1898, with- 
drew her governmental agents, even from Chinchow in 1903, and, 
as Russian and Japanese courts have superseded the Chinese courts, 
the jurisdiction of foreign consuls, both legally and practically, had 
to be determined exactly as the universal practice of states having 
consuls there has established. Referring to the leased territories in 
China in 1904, Professor Lawrence tersely summarized this situation 
when he wrote: "... .Foreign consuls in those places could no 
longer exercise the special powers granted to them by treaty with 
China. The territories in question were held to be under the full 
and exclusive jurisdiction of the states to which they were leased, 
whose authority was deemed supreme while the leases remained in 
operation." (Wear and Neutrality in the Far East, p. 272.) 

25 Although it is not strictly adequate to apply to the Kwantung 
leased territory international practices, presumably applicable by 
analogy, of other somewhat similar international situations elsewhere, 
it is evident that the practice with regard to consular jurisdiction in 



96 EXTRATERBITOBIALITY AND THE KWANTUNG LEASE 

several of such areas only lends support to the conclusion above. 
After 1905, when the Japanese Government reversed their interpreta- 
tion of this subject, the conclusion detailed above has had the sup- 
port of practice in all the leased territories in China. 

Dr. Hsia admits that Phillimore's attempt to hold that foreign 
powers still retained their rights under the Turkish capitulations over 
the island of Cyprus, even after the right to " occupy and administer " 
the island had been conceded to the British Government in 1878, was 
not affirmed by the practice of states thereafter. (Hsia, op. cit., p. 109.) 
In the case of Cyprus, even though the Porte retained considerably 
greater authority than did China in the Liaotung leased territory, 
nevertheless, the other powers " acquiesced in the supersession of the 
consular jurisdiction by the British courts". (Westlake, J. Inter- 
national Law, Vol. I, p, 138.) 

The case of Bosnia and Herzegovina after 1879 was somewhat 
similar. The treaty of Berlin provided that these provinces " shall 
be occupied and administered by Austria-Hungary", the nominal 
sovereignty to remain with Turkey. Foreign states then tpok the 
position that they no longer had consular jurisdiction within these 
provinces of the character permitted them under the capitulations 
with the Ottoman Empire. Neither Westlake nor Oppenheim con- 
tested the view that consular jurisdiction under the Turkish capitula- 
tions was forthwith abrogated within these territories. (Westlake, op. 
citv p. 136; Oppenheim, Vol. I, p. 233.) 

A Chinese scholar in a recent French dissertation has admitted the 
practical validity of the American interpretation of extraterritoriality 
as applied to leased territories in China, although he holds that, on 
strictly juristic grounds, the view is contestable. It may be answered 
that on strictly juristic grounds it is equally possible to contend that 
consular jurisdiction should be determined not by inquiring who has 
nominal sovereignty, but by inquiring who has the power to exercise 
jurisdiction over the territory in question. Here is a case where 
international law needs to adjust itself to particular cases which do 
not fall conveniently into general categories. This Chinese scholar, 
Dr. Leon Yang, however, admits that the practical view is tenable, 
and concludes : " Comme nos amis am&dcains sont des gens pratiques, 
ils ont adopte la premier ". So also have all other foreign states. (Of. 
Yang, Lon, Les Territoires a bail en Chine, p. 128.) 



CHAPTER VI 

THE STATUS OF KWABTTTJNG IN INTBBKATIONAL LAW 

1. The Absence of Analogous Situations in China 
and Elsewhere. There is, to repeat, a great technical 
danger that, in treatment of leased territories, the 
subject of the reserved sovereignty of the lessor 
state be confused with the grant by the lessor to the 
lessee of the right to exercise practically exclusive 
political or jurisdictional authority within such ter- 
ritories. No good purpose can be served by such a 
treatment, for these political leases illustrate a situa- 
tion, unusual, to be sure, in international situations, 
where the mere fact of possession of sovereignty by 
one state is no adequate measure at all of power 
to exercise jurisdiction within such territories. The 
reservation of sovereignty, therefore, generally 
speaking, is important principally because it is a 
means of distinguishing such political leases from 
territory ceded in full sovereignty and perpetuity, 
and because it is declaratory of the right of the 
lessor state to recover such territory at the conclu- 
sion of the term of the lease. 

There is also a great danger in the study of polit- 
ical leases, each of which derives its character 
largely from the terms of the instrument of lease 
itself, that reasoning from presumed analogous sit- 
uations will lead to conclusions entirely untenable 

07 



98 STATUS OP KWANTUNG IN INTEBNATIOHTAL LAW 

and irreconcilable with the terms of the instruments 
of transfer. In seeking to analyze the international 
legal status of, and the exercise of juriscUctional 
rights, therefore, in such a political lease as Kwan- 
tung, it is imperative that reliance be placed prin- 
cipally upon the terms of the lease convention, and to 
utilize somewhat analogous situations only to illus- 
trate interpretation of mooted points where interna- 
tional law itself is lacking in decisiveness. The fact 
is that there exist today but few illustrations of 
leased territories which preserve the legal anomaly 
of division of sovereignty and actual jurisdictional 
rights between two states, and no situation exactly 
comparable to that which exists with respect to the 
Kwantung leased territory. 

As for the political leases granted to various pow- 
ers in China during 1898 it is quite evident that the 
instruments of transfer vary considerably in their 
textual provisions, some of which are evidence of 
fundamentally different concepts as to political 
leases. The German lease at Kiaochow bay in Shan- 
tung province was, for example, a close parallel to 
that at Kwantung in some respects but the lease 
itself has now been recovered by China. Weihaiwei 
has also been retroceded to China, the formal act 
of restitution having occurred on October 2, 1930. 1 
Consequently, of the original leaseholds obtained 
from China in 1898 only Kwantung, Kowloon and 
Kwangchow remain. The British and Japanese dele- 

1 The North Cldna Herald, Oct. 7, 1930. 



STATUS OP KWA29TTTJNG H5T ESTTEBNATIONAL LAW 99 

gations at the Washington Conference made it quite 
dear that they had no intention to restore to China 
in the near future their leases at Kowloon and Kwan- 
tnng respectively, while the French delegation made 
only indecisive references to the future of Kwang- 
chow. 2 Neither Kowloon nor Kwangchow furnishes a 
dose parallel to the situation of Kwantung in Man- 
churia. 8 

9 Conference Proceeding** PP- 1064 ff.; pp. 1656 fit. 

* Certain differences evident in the leased territories in China may 
readily be pointed out to illustrate the point. The original Weihaiwei 
convention of 1898 contained no specific reservation of sovereignty 
by China, Great Britain having been granted within the narrow atrip 
paralleling the shoreline "sole jurisdiction 1 '. (MacMurray, VoL I, 
p. 152.) The Kiaochow convention with Germany, which created "the 
nearest parallel to the Liaotung lease, very specifically pjpvided that 
the Chinese Government was to " abstain from exercising rights of 
sovereignty in the ceded territory during the. term of the lease and 
leaves the exercise of the same to Germany ". (Ibid, p, 114.) That 
wording showed clearly that there was no intent to have reservation 
of sovereignty by China T Y )p jt vn anything more ^bfl^ the ultimate right 
to recover the lease after the expiration of the term specified which, 
in thia case, was not 25, but 09, years. Moreover in another respect 
the Kiaochow convention differed significantly from that for Kwan- 
tung: nothing was said in the latter with respect to assignment of the 
lease to a third state, while, in the former, it was specifically provided 
that " Germany engages at no time to sublet the territory leased from 
China to another Power ". The extension of the Kowloon lease made 
to the British in 1888 superficially was quite similar to the situation 
at Kwantung in that the military significance of each was uppermost, 
Kowloon being enlarged in size the better to safeguard Hong Kong. 
But the lease convention provided that Chinese officials were to 
continue to exercise jurisdiction in that territory " except so far as 
may be inconsistent with the military requirements for the defence 
of Hong Kong". (IbicL, p. 130.) In consequence of disorders in the 
territory in 1899, Great Britain, by an order in council of Dec, 27, 
abolished all Chinese jurisdiction there on the ground that the exer- 
cise of Chinese authority had proved irreconcilable with the require- 



100 STATUS OF KWANTTOfG IN INTEBNATIONAL LAW 

The international legal status of Kwantung, there- 
fore, can best be determined by principal reliance 
upon the terms of the instrument of lease of March 
27, 1898, the character of the instruments of transfer 
of that lease to Japan in 1905, and the legal factors 
involved in the extension of that lease to ninety-nine 
years in the Sino- Japanese treaty and notes of May, 
1915. International situations elsewhere in the world 
may be cited and described where it can be asserted 
that precedents illustrating mooted points are more 
or less analogous, and, as will appear, these will 
serve to demonstrate the entirely unique status not 
only of leased territories in general but of Kwantung 
in particular.* 

ments of the British for providing for the defense of Hong Kong. 
Moreover, it is evident that an unique situation exists today with 
respect to Kwantung for its only close parallel in limited respects 
at Kiaochow has disappeared, and the Liaotung lease was originally 
granted not to Japan, but to Russia. The extension of the term of the 
lease in 1915 to 99 years also leads to complications. 

4 It is noteworthy that a Chinese scholar, in a French dissertation 
which came to the writer's attention while the final manuscript of this 
work was in preparation, introduces his treatment of Leased Terri- 
tories in China with the following statement: 

"Dans les relations Internationales il ne manque pas d'exemples 
qu'un Etat laisse administrer et exploiter une portion de son territoire 
par un autre, pour un laps de temps determine*. Us sont surtout 
frequents entre Nations d'ingale puissance* Pourtant, parmi ces 
nombreux examples, chacun a son aspect particulier, et, il est a notre 
sens inexact de les englober sous une meme rubrique plus ou moins 
precise comme la plupart des jurisconsultes du droit des Gens, Pont 
fait. Car efils prsentent en apparence les uns avec les autres certaines 
analogies, il n'y a pas identite* parfaite qui nous autorise a les con- 
side>er comme les actes rate's dhine seule et mme espece juridique" 
(Yang, Lon. Les Territoires a batt en Chine, p. 1.) 



STATUS OF KWAHTTTJffG IN KiTTEBNATIOKAL LAW 101 

The Kwantimg leased territory is neither equiva- 
lent to ceded territory, with full transfer of title to 
ownership, nor to a lease in perpetuity, because 
it is limited to a specific term of years. Nor is it 
properly called an international servitude, in the 
sense usually attributed to that term by the publi- 
cists. It was almost universal at the opening of the 
century to consider leased territories in China as 
" disguised cessions " the publicists, in so describ- 
ing them, seeking to be realistic in their attempts 
to establish their status in international law. But 
this view has required considerable alteration since 
realism today would at once draw attention to the 
fact that in practice certain of them have actually 
been returned to China. 

A few illustrations of leases in international law, 
and of other international situations illustrating 
this division between the rights of the sovereign state 
and of the state to which broad grants of authority to 
exercise jurisdiction are evident. G-uaritanamo and 
Bahia Honda, for example, were leases obtained by 
the United States from Cuba by virtue of executive 
agreements and in pursuance of a treaty of 1903. 5 
The peculiar relation of Cuba to the United States, 
which has been established by bilateral agreement 
wherein the United States is actually a sort of trus- 
tee for a country which it liberated from Spain, sug- 
gests the difference. The Panama Canal Zone exists 
with nominal sovereignty retained by the Republic 

5 Malloy, Treaties, etc., Vol. I, pp. 362, 368, 360. 



102 STATUS OP KWANTTJNG IN JNTEBNATIONAL LAW 

of Panama, but with jurisdictional rights granted to 
the United States, i. e., " all the rights, power and 
authority " over the zone. But the canal treaty of 
November 18, 1903, gave these rights to the United 
States ' ' in perpetuity ' ', limited only by the fact that 
the territory was acquired for the construction of 
an inter-oceanic canal, for which object alone the 
" use, occupation and control " of the zone adjacent 
to the canal was conceded to the United States. 6 
That this limitation was not insignificant is shown 
by the fact that, faced with a conflicting interpreta- 
tion of the canal treaty on this very point of juris- 
diction, it was necessary to negotiate the Taf t agree- 
ment of December, 1904, to satisfy both parties. 
This agreement shows clearly that the United States 
did not obtain control of the fiscal administration of 
the canal zone in such matters as customs control, 
postal system or unlimited right to export the 
natural products of the land such as minerals. 7 Fur- 
thermore, the Panama Canal Zone is not an inter- 
national political lease, in a strict sense, for there 
was the element of purchase involved, and addition- 
ally the Hay-Banau Varilla Treaty of November 18, 
1903, provided that an annual payment of $250,000 
should be made to Panama. In a sentence, then, the 
chief distinction between the Panama Canal Zone 
and the Kwantung leased territory is that, while, in 

Malloy, Treaties, etc., Vol. H, p. 1439 ; V. 8. For. Rels. 1904, p. 543. 

* Executive Orders relating to the Panama Canal (Wash., D. C.), 
1922; Order of Dec. 3, 1904. (Of. Wright, Quincy. Mandates under 
the League of Nations, p. 395.) 



STATUS OF KWASTTTHSTG IK INTERffATIONAL LAW 103 

the former, the United States acquired limited rights 
of jurisdiction in perpetuity, in the latter, the Japa- 
nese acquired practically unlimited rights of juris- 
diction, but for a fixed term of years. 8 

Nicaragua also presents illustrations of apparent 
anomalies of this sort. The Nicaraguan Canal Con- 
vention of August 5, 1914, ratified in 1916, granted 
" in perpetuity " to the United States " the exclu- 
sive proprietary rights necessary and convenient for 
the construction, operation and maintenance of an 
inter-oceanic canal ". 9 Jurisdictional rights over the 
canal route, if and when such a canal were actually 
constructed, were left extremely indefinite. As for 
the Corn Islands and the territory to be leased for 
naval bases on the Gulf of Fonseca, these were leases, 
which, while not in perpetuity, were renewable after 
ninety-nine years for a like period at the option of 
the lessee, the United States. Moreover, it was ex- 

8 The Jurisdictional rights granted in perpetuity to the United 
States in the Panama Canal Zone were not conferred in the form of a 
lease. Professor Fenwick properly points out that " the term 'lease ' 
is not mentioned in the treaty of 1903 by which (Art. 1C) 'the 
Republic of Panama grants to the United States in perpetuity the use, 
occupation and control ' of the zone of land and adjacent territory for 
the construction of an inter-oceanic canal ". (Fenwick, C. G. Inter- 
national Law, p. 244.) Dr. Lauterpacht also correctly notes that this 
" grant in perpetuity" is not a lease. (Lauterpacht, op. cit., p. 185.) 
Professor E. C. Stowell, therefore, is technically in error in referring 
to the Panama Canal Zone as " a perpetual lease ". (International 
Law, p. 55. 1931 ed.) Similarly, Professor Quincy Wright, in drawing 
the analogy between this situation and international political leases, 
is uncritical about the distinction. (Mandates wider the League of 
Nations, p. 300. Footnote.) 

U. 8. For. Rels* 1916, p. 849; U. 8. Treaty Series, No. 624. 



104 STATUS OP KWANTTHTO IN INTEENATIONAL LAW 

pressly stated that these islands and points to be 
leased for naval bases were ' ' subject exclusively to 
the laws and sovereign authority of the United 
States ", 10 The Nicaraguan canal route was granted 
to the United States, therefore, in perpetuity but not 
in full sovereignty, and with undefined jurisdiction, 
while the Corn Islands were granted in full sover- 
eighty for ninety-nine years, renewable at the option 
of the United States. 

Other illustrations of special types of leases might 
be given, but, because of the necessity of turning in- 
evitably to the conventional bases for each of them, 
and because it is quite evident that this reveals dis- 
tinctions between the Kwantung lease and those with 
which an attempt at analogy might be made, no 
special purpose, except of confusion, would thus 
be served. As for the comparison with mandated 
territories in the Pacific, in Africa or in Asia Minor, 
it is equally obvious that their status a question on 
which there is still very marked difference of opinion 
among the publicists is unique. Where sovereignty 
resides with respect to these mandated territories, 
especially in the Class B mandates, is a very mooted 
question, a solution of which would hardly assist our 
study. 11 

10 Ibidem. 

11 On this subject reference may be made to the article by Professor 
Quincy Wright in the Amer. Jour, of Int. Law, Vol. XVII (1923), 
pp. 691-703. Of. Wright, Quincy. Mandates under the League of 
Nations; Margalith, A. M. The International Mandates; Van 
Maanen-Helmer, Elizabeth. The Mandate System in Relation to , 
Africa and the Pacific Islands. A conclusion in the latter, is arresting, 



STATUS OF KWANTTTISTG IN ItfTERNATIOSrAL LAW 105 

2. The False Analogy of Kwantyng with Leases 
in Private Law. Influenced by the presumed analogy 
of these international territorial or political leases 
with ordinary leases of real property in private law 
some writers have used the term " usufruct " to 
describe the obligations of the lessee to the lessor 
and the term " servitude " to describe the relation- 
ship itself. From this presumed analogy they have 
gone so far, in some cases, as to declare that the 
principles of leaseholds in private and municipal 
law, not only should be applicable to such a political 
lease as Kwantung, but, are, under international law, 
thus recognized. An assertion of Dr. M. T. Z. Tyau, 
for many years connected with the Foreign Office 
of the Chinese Government, and now thus situated 
in Nanking, seems to have been the leading influence 
in causing several of his countrymen to adopt the 
same conclusion: 12 

" Since the conveyance is a lease, there are various cove- 
nants which a lessee is bound to observe. Some of these 
covenants are express., and some are implied. The express 
covenants relate to the reservation of the lessor's rights of 

to say the least :".... The truth is that there is no such thing as 
sovereignty over the mandated territories because there is nothing 
even resembling absolute power." (p. 46.) (Cf. Lauterpacht, op. cit^ 
pp. 191.) 

12 Tyau, M. T. Z. The Legal Obligations Arising out of Treaty 
Relations between China and other States, p. 70. It is significant 
that, for this attempt to draw an analogy between such political 
leases in international law and ordinary leases of real properly in 
private law, he cites no authority. The great majority of Chinese 
writers who have adopted the same view have cited Dr. Tyau as 
above. 



106 STATUS OF KWAtfTTJNG IN INTBBNATIOlSrAZi LAW 

sovereignty, the period of tenancy, the non-assignability of 
the lease The second class of covenants are not ex- 
pressly mentioned, but are implied and well understood. For 
example, the lessee must remain on good behaviour and con- 
duct himself properly. He is to enjoy the right of possession 
quietly, and not commit any abuse or nuisance on the leased 
territory. Further, he is to make use of his usufructuary 
right so as not to disturb, prejudice, or infringe upon his 
neighbour's rights. In other words, he must so use his tene- 
ment as not to violate the maxim of sic utere tuo, ut cdienum 
nan laedas. Otherwise, he who suffers from the nuisance com- 
mitted by Tiitn or from the wrong done by him, may secure a 
redress against him, and, in the last resort, get the land- 
lord to deprive him of possession. Above all, he must restore 
the original property to the grantor at the end of the lease, and 
in as good a condition, allowing for reasonable wear and tear, 
as when the latter first conveyed it to him. Therefore, if when 
the lease expires, the lessee cannot restore his property to the 
lessor, the latter has a right to be indemnified by his tenant. If 
the property restored is one which has greatly deteriorated or 
depreciated in value, because the lessee has not kept it in good 
repair, a similar right of indemnification inheres in the lessor/' 

What strikes one most in reading this quotation 
is that the language of private law has been drawn 
upon for description of an international situation in 
such a manner that the conclusion drawn, in using 
such terms as'" landlord " and " tenant ", " nui- 
sance " and " indemnification ", has become a re- 
ductio ad dbsurdum. But, aside from the impracti- 
cability and impossibility, in fact, of presuming such 
an analogy to be at all applicable to an international 
political lease, it is pertinent to inquire by what 
authority it has been assumed that international 



STATUS OP KWANTTTNG IK nTTEEffATIOtfAL LAW 107 



law, as at present constituted, contains any justifica- 
tion at all for the analogy. Do rules of international 
law become such merely because one or more writers, 
after discovering certain useful terminology in pri- 
vate law, apply them in writing to international 
situations? If international law were thus easily ad- 
justed .to the desires and foibles of the publicists 
it would be no law at all, requiring not even the evi- 
dence of a precedent, far less of an international 
conventional agreement to establish it. The fact is 
that not only are these international political leases 
not recognized by international law as analogous to 
leases in private law, but the question whether it is 
possible to construct an international body of rules 
and legal principles on the precedents of private law 
is one on which there is wide disagreement among 
the publicists. 13 

18 In order that it may be made evident that this notion applied 
to leased territories in China is widely prevalent among Chinese 
writers particularly, some additional quotations need to be made. Dr. 
Hsia Ching-lin, now president of Medhurst College, Shanghai, adopt- 
ing Dr. Thau's thesis in toto, has written the following: "And it 
is the right of the lessor to see that they are not violated or in- 
fringed upon. For example, the lessee must remain on good be- 
haviour and conduct himself properly, and not commit any nuisance 
on the leased territory. In short, he must so use his tenement as 
not to violate the maxim of sic utere tuo, wt, dttenum non laedas. 
Otherwise, the landlord may deprive him of his possession. It seems 
that all the conditions governing 'determination of the lease' in 
common law are here present. These leases may therefore be defeated 
or forfeited, before their regular expiration, on the lessee's non- 
performance of covenant, by the lessee's tortious alienation, or by 
the bankruptcy or insolvency (corresponding to the dissolution of 
the lessee state), and the like." (Studies in Chinese Diplomacy, p. 
106.) This is from a doctoral dissertation presented to the University 



108 STATUS OP KWANTUNQ DST INTERNATIONAL LAW 

The controversy among publicists in international 
law as to the degree of application of the analogy 
between private law situations, rules and terms, with 
international law, is, of course, an old, old story at 

of Edinburgh. It is noteworthy that Dr. Hsia here cites in a footnote 
a "Treatise on Law of Leases" by T. Platt-a purely private law 
work not intended to describe international law. Similarly, in defining 
a political lease in international relations, he selects a definition from 
private law, quoted from the same author: "A lease is a grant or 
assurance of a present or future interest, for life, for years, or at will, 
in lands or other property of a demisable nature, a reversion being 
left in the party from whom the grant or assurance proceeds." 

Similarly, too, Dr. M. J. Bau, in a dissertation presented at The 
Johns Hopkins University, held as follows: "The lessee states are 
to enjoy their privileges of tenancy only on good behavior and quiet 
enjoyment; and should the lessee states prove themselves to be 
nuisances or menaces to the welfare and safety of the territorial 
sovereign or other neighboring states, the territorial sovereign who 
granted the lease would have the right to abate the nuisance or to 
eliminate the menace. Furthermore, the lessee states must restore, 
at the expiration of the leases, the leased territories ' in as good a 
condition, allowing for reasonable wear and tear, as when the latter 
first conveyed it to him'; and should the territories, on restoration 
prove to be deteriorated or impaired in any way, due to the negli- 
gence of the lessee states to keep them in repair, the territorial 
sovereign would be entitled to due compensation 'or indemnity ." 
(The Fcn^eign Relations of China, pp. 232^33. 1st ed.) The quotation 
in context is from Dr. Tyau. No other authorities for this opinion are 
cited. 

Professor Geddes Rutherford in an article on "spheres of in- 
fluence " states that, as to the rights of the lessee states in leased 
territories "such rights are strictly, if not narrowly construed". 
(American Journal of International Law, Vol. 20, 1926, p. 322.) As 
will appear later, this assertion is contrary to law and fact with respect 
to these China leases. The idea that such leases are international 
servitudes, and that a private law principle of interpretation should 
apply to them, seems to have influenced his judgment here, but it is 
evident that it has no basis in the realities in China. He gives no 
authority for his statement, and no analysis of the lease conventions. 



STATUS OF KWANTUNG IN IKTEBNATIOtfAL LAW 109 

Least as old as Grotius, thus, three centuries. Gro- 
tius repeatedly pointed out that analogies with pri- 
vate law should be rejected, though he himself was 
not strictly puritanic in the matter, and by no means 
a positivist. H. B. Oppenheim, in the middle of the 
nineteenth century, contended that the analogy to 
private law should be rejected or taken cum grano 
salis, as against the assertions of Puf endorff, in the 
seventeenth century, that the analogy was reason- 
able. The controversy was waged in the main, be- 
tween the so-called positivists, who constructed their 
interpretation of international law from interna- 
tional custom and treaties, and the so-called natural 
law school, who maintained that the law of nations 
was derivable from the " law of nature ", and who 
tended to fall back on the Eoman Law. 14 

Between these two schools of law it is, fortunately 
for our purposes, quite unnecessary to choose. 
(Sic!) What is important to emphasize, however, is 
that, generally, neither the advocates of the one 
school nor of the other have accepted without ex- 
tensive qualifications the application of the terms, 
principles and rules of private jurisprudence, as of 
the law of leases, to these territorial leases from state 
to state. A contemporary and authoritative and 
searching commentator, Dr. H. Lauterpacht, the 
Viennese publicist, whose avowed purpose it is to 
show how reasonable it is to resort to private juris- 

"Cf. Lauterpacht, H. Private Law Sources and Analogies of In- 
ternational Law, pp. 7 ff. 



110 STATUS OP KWAH-TTJNG IN IWTEB2STATIONAL LAW 

prudence as a source of international law, while de- 
fending the use of the term " lease " in its applica- 
tion to these territorial transfers from state to state, 
merely asserts China's right to recover them at the 
expiration of their respective terms, and repudiates 
the assumption that they are but " disguised ces- 
sions "." Even Dr. Lauterpacht does not appear to 
contend that the lessee state remains in temporary 
possession with accountability for its behavior, much 
less that the lessee state might have to forfeit the 
lease for having committed a " nuisance " therein. 

The fact is that, as one advocate of the analogy 
of the lease in private law to these political leases 
of territory from one state to another concedes, 
" there are, however, persons who are sceptical 
about such an interpretation of these leases ". 16 
John Westlake, whose criticism of the Austinian and 
positivist school 17 did not lead trim to confuse such 
leases in private and in international law, clearly 
distinguished between them and warned against the 
assumption that the rules of one can apply to the 
other : 18 

"When property is leased, the lessor retains a proprietary 
right which runs concurrently with the lessee's right of enjoy- 
ment. If, therefore, the analogy were closely pressed the state 
which grants a lease of territory would be held to retain all the 
time some sort of sovereignty over it. This however, would 

Ibidem, p. 185. 

"Baa, op. cti. t p. 101. 

17 Wesflaie, J. International Law, Vol. 1, p 8 

18 /fewfem, pp. 133-134. 



STATUS OP KWANTTOG IN INTBBBTATIONAL LAW 111 

not suit the parties to such transactions as those which have 
been mentioned, since the lessee state requires the unrestricted 
use of the soil for the erection of fortresses and other purposes 
as well warlike as pacific, while the lessor state would object 
to the loss of its neutrality which would result from the use 
by the other of what was in any sense its territory, in or in 
support of warlike operations against a third." 

No one has shown more clearly the practical im- 
possibility of assuming this analogy to be at all ap- 
plicable than Professor Lawrence, who, perhaps 
more than any other publicist, realized that snch an 
international situation as evident in the Kwantung 
leased territory was unique, one for which the usu- 
ally accepted categories of international law had 
little or no application. 1 * 

"As to a lease, we are f ainiliar in our own law with the 
powers of lessor and lessee. The matter is simple enough when 
such things as a house or a flock of sheep are concerned. But 
how does it work out when we have to deal with state 
authority? .... There is no limit to the legal conundrums 
that might be invented by a little ingenuity. But in order to 
solve them satisfactorily we must qualify the theories of jurists 
by considerations drawn from the hard facts of international 
intercourse. And, after all, old theories which fail to explain 
new facts are themselves in need of modification. Law was 
made for men and states, not men and states for law." 

" We must remember ", to quote Professor Law- 
rence, further, " that the administration passed en- 
tirely to the lessee states, who not only carried on 
the government, but erected fortifications, estab- 
lished garrisons, and even dealt with the Chinese 

19 Lawrence, T. J. War and Neutrality m the Far East, pp. 270*271. 



112 STATTTS OF KWANTTTtfG IN ESTTEBlSrATIOKAL LAW 

inhabitants as resident aliens/' His own conclusion, 
as might be expected, is far more descriptive of 
the real situation in these leases, and more applicable 
in particular to Kwantung, than any description 
drawn from an untenable analogy with private law 
leases. " Bearing these things in mind, we are forced 
to the conclusion that a lease in international trans- 
actions is not the commonplace and innocent affair 
we know so well in dealings with private prop- 
erty." 20 

Until recently it was almost uniform for French 
publicists to reject the presumed analogy, here under 
criticism, on the assumption that such territories 
were " disguised cessions ". 21 It is interesting, how- 
ever, to note that a Frenchman who, for many years 
adviser to the Chinese Government, has had oppor- 
tunities to view these political leases as they are, 
has also criticized this analogy with private law 
leases, but on entirely different grounds. Professor 
Jean Escarra, of the faculty of law in the Univer- 
sity of Grenoble, in a preface to a recent disserta- 

20 Ibidem, p, 272. 

21 A critical study of this term " disguised cessions " follows. Pro- 
fessor George G. Wilson of Harvard once remarked that, within these 
leased territories in China, a " positive servitude " was created, des- 
cribing a servitude as a situation where " a state is under obligation 
to permit within its territory another state to exercise certain powers ". 
(Naval War CoUege: International Law Situations, 1907, p. 13.) He 
noted however, that " Chinese authority was for the most part at an 
end within the leased areas ". Some years later Professor Wilson, in 
describing these leases, refrained from applying the term " servitude " 
to them, calling them " leases ". (Naval War CoUege: International 
Law Situations, 1912, pp. 95-96.) 



STATUS OF KWANTTHTG IN INTERNATIONAL LAW 113 

tion by a Chinese scholar, who likewise maintains 
that this analogy is false and contrary to current 
interpretation of international law, expresses the 
following opinion : 22 

" La nature juridique des cessions et des territories i bail 
est difficle & determiner. Pour ne parler que des seconds, le 
mot bail (tsou tsie) 6voque une notion courante du droit 
prive. Apparemment tout se passe comme si TEtat souverain, 
propri6taire du sol, se d,6pouillant, au profit du preneur, de 
droits inh&ents 4 sa qualit6 de pit>pri6taire. Et 1'on est 
tent6 de soutenir que la Chine, parce qu'elle garde la pro- 
pri6t& du sol des territoires & bail, ne serait pas dans une 
situation diff6rente de celle d'un propri6taire qui loue son 
immeuble ; la maintien de sa souverainet6 territoriale compen- 
serait done pour elle la renonciation volontaire (par traite) i 
des droits qui seraient normalement les attributs de la 
propri6t6. 

"Cette vue serait doublement inexacte, d'abord parce 
qu'elle 6tablirait, entre la propri6t6 du sol et la souverainet6, 
une relation que tendent & r6pudier les theoriciens modernes 
du droit international public, ensuite parce que les categories 
du droit priv6 ne valent rien pour expliquer des situations qui 
reinvent du droit des gens/* 

This dissertation, for which Prof essor Escarra has 
written the preface, is apparently the first instance 
of a work of a Chinese writer wherein there is a clear 
departnre, based on strictly juristic and realistic 
grounds, from the attempt to point the analogy of 
political leases in international law to private leases 
in the domestic field. The thesis of Dr. Leon Tang 

22 Dr. Jean Escarra's preface to: Yang, Leon. Les Territoirea a 
bail en Chine, pp. i-ii. 



114 STATUS OP KWA2STTUKG IN IffTEBNATIONAL LAW 

is built on a case, which lie develops convincingly, 
that these leases in China are unique, 28 that their 
conventional character necessitates a careful study 
of the treaty provisions in each case, and that it is 
quite evident that these political leases are not to 
be considered international " servitudes ", 24 This, 
then, is such a departure from the usual attempt of 
Chinese writers to draw this analogy that it deserves 
the emphasis here given it. 28 

2* Ibidem, pp. 2, 7. 

24 Yang, pp. 78 ff. 

25 Among the writers who characterize these international terri- 
torial leases as " international servitudes " are Dr. Tyau, Dr. Hsia and 
Dr. Bau. 

Dr. Hsia assumes that the term " servitude " in the private law of 
England, for example, is applicable both to international law in 
general and to these political leases in particular. He defines a ser- 
vitude by choosing a description from municipal law. (Hsia, op. cit., 
p. 100.) Referring, then, to the Waihaiwei lease he concludes that 
" this imperium in imperio constitutes what is properly known as an 
international servitude ". (p. 101.) 

Dr. Tyau, whose authority for this analogy and application of the 
term "servitude" to leased territories in China has been accepted 
by Dr. Hsia and others who favor this view, held that "these leases 
constitute a species of international servitudes, and so will be con- 
strued strictly against the beneficiary states "'. (Tyau, op. cit., p. 68.) 

Dr. Bau evidently accepts this view for he cites Dr. Tyau to the 
point and attempts to describe these leases as similar to leases in 
private law. Mr. Kao Yin-fang, in a more recent essay, presents the 
same thesis, holding that "a lease constitutes a species of inter- 
national servitude, and so win be construed strictly against the bene- 
ficiary state" again quoting Dr. Tyau. ("The Lease Conventions 
in China ", in The Chinese SocMvnd PoUticdL Science Review, Vol. 
Xn, No. 4, Oct. 1928, pp. 530-5310 He, too, holds that the lessee 
* must remain on good behavior and conduct himself properly " and 
that " he is to make use of his usufructuary right so as not to dis- 
turb, prejudice, or infringe upon his neighbor's rights "evidently 
quoting Dr. T^yau without, however, giving any specific authority for 

Ki* 



STATUS OF KWANTTJISTG I2ST nSTTEBNATIONAL LAW 115 

With regard to this description of international 
leaseholds as "servitudes ", and the application of 
the term "-usufruct " to describe the obligation of 
the lessee, attention may first be drawn to the fact 
that neither of these terms are found in the original 
lease conventions themselves. Neither term appears 
in the original Liaotung lease convention of March 
27, 1898, though it is interesting to note that the Bus- 
sian Government did use the term " usufruct " in 
its statement of January 17/30, 1903, in which it an- 
nounced that foreign consuls were to apply to St. 
Petersburg for their exequaturs to reside at Dairen,* 6 
Westlake, commenting on this announcement which 
appeared in the Eussian press as an official inter- 
pretation, remarked: " This may pass as rhetoric, 
but it cannot be doubted that the practical Russian 
view is the same as the German ". 27 Now the official 
German view, which "Westlake noted, was that of 
" the complete transfer of sovereignty for the speci- 
fied term ", the German Imperial Gazette having 
announced that China had transferred for the term 
of the lease " all its sovereign rights in the terri- 
tories in question ".** The fact is, however, that, 
while Westlake >s criticism of the term " usufruct " 
is acceptable, he erred on the side of presuming that 
the retention of sovereignty by China was meaning- 
less. It is evident, however, that the situation in 
these leases in China was " needlessly complicated 

26 U. 8. For. Reh., 1903. The phrase " c6de en usufruit " is used. 
China, No. 1888, p. 58. 

** Westlake, op. cti., Vol. I, p. 134. 



10 



116 STATUS OP KWANTUETG IN INTERNATIONAL! LAW 

by the introduction of terms derived from Roman 
law ", and that " the treaty part of the law of na- 
tions is precisely that part which is generally con- 
sidered not to be derived from the Roman law "** 
In fact, it is evident that there is no general agree- 
ment today among the publicists as to the appropri- 
ateness of using the term " international servitude " 
or that of " usufruct " to describe international 
situations. 80 To illustrate this, one French writer 
pointed out the following in 1908 : 31 

" La notion de servitude Internationale est inapplicable an* 
traitfe de bail et de cession d'administration, car sos traitSs 
ne se bornent pas a creer eertaines obligations pour TfiJtat 
cMant. Ils contiennent une abdication complete de souver- 
ainet6 sur un unterritoire, nn abandon total de Yimperium de 
Pfitat sur une partie de ses sujets, places sous Fautorite" ex- 
clusive d'un autre iStat . . . . Le cession mme temporaire 
de territoires ne saurait constituer une servitude, car la servi- 
tude, notion juridique de droit priv6, ne peut porter que SUT 
des droits reels.*' 

29 Smith, F. E., and Sibley, N. W. International Law as In- 
terpreted during the Russo-Japanese War, p. 18. These writers held 
that the concessions of China in 1898 axe " hardly elucidated by being 
described as usufructs,'* and concluded that " the lease of Port Arthur 
is not an instance of usufruct ". 

80 Holland, in a letter to the London Times, April 1, 1898, writing 
to this point, remarked: " I can recall no other use of term usufruct 
in. international discussion than the somewhat rhetorical statement 
that an invader should consider himself as an usufructuary of the 
resources of the country, which he is invading ; which is no more than 
to say that he should use it en bon pere de famUle." The reference is 
to Grotius, De Jure Belli ac Pads, Bk. I, Ch. IV, Ser. 20. (Cf. The 
British Year Book of International Law, 1925, p. 111.) 

* l Perrinjaquet, J. "Des annexions deguis^es de territoires" in 
Revue Gtn&rale de Droit International Public, Vol. XVT, 1909, p. 347. 
Professor Perrinjaquet cites Nys, Le droit international^ les prinripes, 
les theories, les faits, Vol. II, pp. 271-277. 



STATUS OF KWANTUNG IN INTERNATIONAL LAW 117 

Professor Lawrence, also, drew attention to the 
impropriety of the Russian Government assuming 
the term " usufruct " to be applicable to the Liao- 
tung lease. " In Eoman law ", to quote Lawrence, 
" usufruct was the right of using and reaping the 
fruits of things belonging to others, without destroy- 
ing their substance ", 82 This, however, while " sim- 
ple enough when such things as a house or a flock 
of sheep " are concerned, has no application to these 
political leases where the element of the sovereignty 
of a state is involved, along with the unique situa- 
tion, presented at Liaotung, of complete delegation 
of all rights to exercise that sovereignty in practice 
for purposes of war as well as of peace to the 



To presume, therefore, that these political leases 
in international law imposed upon the lessee obliga- 
tions comparable to those of a lessee of an ordinary 
piece of real estate in private law is to lay oneself 
open to the danger of advocating that which is likely 
to border on the absurd. At least it would be neces- 
sary to modify greatly the concept of servitude if 
it were to be applied at all to such political leases. 
By just what kind of acts, for example, as of Japan, 
the lessee in Kwantung province, would it be pos- 
sible to destroy the substance of the leased terri- 
tory by razing a native village, or by tunneling 
through a mountain? By a strict application of the 
analogy one might also be led to the inquiry as to 

82 Lawrence, op. rit., pp. 271-272, 



118 STATUS OP KWANTTHSTG IN ItfTEBK'ATIOlS'AL, LAW 

what obligations devolved upon the grantor, China, 
in view of the actual improvement of the territory 
by building a city of over a hundred thousand peo- 
ple, and by constructing a hitherto absent road sys- 
tem f or if the rule of private law be applied in one 
respect, equity at least would require its application 
upon the lessor as well as the lessee? How measure 
the significance of a so-called " nuisance " or the 
value of these improvements? On principles of 
equity, if it were possible to formulate " damages " 
against Japan, it should also be possible to assess 
upon China, which would certainly be the case in 
Kwantung, several million dollars for improvements 
to the leased territory. What is sauce for the goose 
is sauce for the gander. 

The Kiaochow convention made some mention of 
this question of remuneration by China in case the 
lease were returned before the expiration of the 
period specified, but the Liaotung convention is si- 
lent on the point. If and when a settlement should 
come about to effect a return of Kwantung to China, 
it would have to be rather on the basis of political 
considerations than through any attempt to apply 
the false analogy of a private law lease to this polit- 
ical lease. States are here involved instead of indi- 
viduals, and, as there are no entirely analogous 
situations to Kwantung, and never have been, there 
are no precedents, and no adequate rules of inter- 
national law which would offer much assistance. We 
can conclude, then, with Prof essor Lawrence that, 



STATUS OF KWANTTJNG IS UTTEBETATIOISrAL LAW 119 

with, reference to the Kwantung lease in particular, 
" the use of phrases taken from the law of lease 
or usufruct, is in its very nature deceptive ". 88 

We may repeat, then, that the attempted analogy 
which a limited few writers may choose to draw be- 
tween private law situations and these international 
political leases is not sufficient grounds for assum- 
ing that any international law has been created by 
the process. Opinions differ as to just what is inter- 
national law, but it is quite evident that the opinions 
of publicists on particular points do not create law 
juristically speaking: 84 such opinions must be rea- 
sonable, appropriate to describe, and be declaratory 

88 Lawrence, T. J. Principles of International Law, pp. 167-168. 
(7th ed.) 

8 * Aside from the claim of the positivists that international law 
acquires binding force on a given state only when that state expressly 
or impliedly accepts a given rule, the development of international 
law since the eighteenth century has more and more tended to seek 
into the actual practice of states for a rule of law than to rely on the 
opinions of publicists. The twentieth century attitude toward the 
weight to be given the opinions of publicists was given classic state- 
ment in the Paquete Habana (1899) : " Such works are resorted to 
by judicial tribunals, not for the speculations of their authors con- 
cerning what the law ought to be, but. for trustworthy evidence of 
what the law really is." The statute of the Permanent Court of In- 
ternational Justice, while permitting the court to decide a case ex 
aequo et bono, considers the writings " of the most highly qualified 
publicists of the various nations, as subsidiary means for the deter- 
mination of rules of law ". We look, then, to the recognized publi- 
cists for unanimity of expression on principles which may not yet 
have been applied by the courts, and, generally, such opinions are 
better regarded as evidence of what the law really is* The writings 
of recognized publicists do not, therefore, create international law. 



120 STATUS OP KWABTTTTNG IN ItfTEBNATIONAL LAW 

of, the established practice of states, and, therefore, 
require some definite form of international recogni- 
tion through precedents or state agreement. 

With true servitudes in private law the grantor, 
as an individual person, usually retains more than 
the mere right of nominal ownership, frequently even 
possession for most purposes, though private servi- 
tudes may, of course, take numerous forms. There 
is, however, one fundamental contrast with all these 
servitudes in the private law where individuals, in- 
stead of states, are involved, and that is this : sover- 
eign states are involved in international situations, 
and there is the element of state sovereignty involved 
in these international cases which is entirely absent 
from the case of servitudes in private law. 85 In pri- 
vate law of servitudes one individual grants to an- 
other a specific " right of harmless use " '(jus utili- 
tatis innoxiae), while the grantor retains dominium 
over the property or land itself. In international law 
this element of dominium becomes transformed to 
imperium, for here the element of sovereignty is in- 

85 "Private law postulates the existence of a common superior, 
whereas international law makes a contrary assumption and recognizes 
the existence of a sphere in which each state is sovereign and master 
of its own destiny except in so far as it may be coerced by external 
force," (McNair, Arnold D. "So-called State Servitudes" in the 
British Year Book of International Law, 1926, p. 122.) " When we 
forsake the field of constitutional or municipal law and enter that of 
international relations we no longer have to deal with legal superiors 
and legal inferiors. Here we find no supreme will, but, legally 
speaking, a collection of equal wills, and the conflict, or at least the 
interplay of independent powers." (Willoughby, W. W. The Funda- 
mental Concepts of Public Law, p. 282.) 



STATUS OP KWANTTJira IN INTBENATIO3STAL LAW 121 

volved. The very term " servitude " therefore, be- 
comes a source of suspicion and criticism by respon- 
sible officials of governments. 38 International trea- 
ties and conventions are not contracts in the same 
sense as ordinary contracts between legal persons in 
private law; while it is quite obvious that, as Pro- 
fessor McNair has well pointed out, " the rules as 
to duress in the two spheres are as different as they 
could well be, and the clausula rebus sic stantibus, 
though having certain analogies in the Anglo- Amer- 
ican rules regarding supervening impossibility 
would have a devastating effect in the common law 
of contracts ". 8T 

One may admit that international law, can, with 
caution, derive considerable use from an importation 
of terminology, in certain instances, from the pri- 
vate law of states, but that this is a process fraught 
with great dangers is widely admitted not only by 
the publicists, but by the judges in a series of recent 
international cases involving this subject of inter- 
national servitudes. The fact is, that while some pub- 
licists affirm the application of the term " interna- 
tional servitude ' ' to relations between states, a large 
number of them are extremely cautious in borrow- 
ing from private law to urge the analogy, while 

8e " States are very sensitive hyper-sensitive on the question of 
sovereignty, and the very word ' servitude ' has an ugly sound in the 
ear of a sovereign state's legal adviser or representative." (Ibid., 
p. 122.) 

ST The British Year Book of International Law, 1925, p. 122. 



122 STATUS OP KWANTOTTG IN INTERNATIONAL LAW 

others reject the appKcation of the term to inter- 
national situations entirely. 88 

88 The doctrine of international servitude, as we know, was very 
badly "damaged" by the North Atlantic Fisheries Arbitration, in 
spite of the array of presumed instances cited by the American 
counsel, Mr. Elihu Root. Mr. Root defined an international servitude 
to describe " an independent state limiting its sovereignty .... so 
as to permit, and permanently permit, another state itself or through 
its citizens to have the beneficial use of the territory of the state that 
limits its sovereignty ". The arbitral tribunal, however, declined to 
accept the doctrine of international servitude as thus defined, on 
the ground that the doctrine "originated in the peculiar and now 
obsolete conditions prevailing in the Holy Roman Empire of which 
the domini terrae were not fully sovereign states " and held it inap- 
plicable to international situations as " being but little suited to the 
principles of sovereignty which prevails in states under a system of 
constitutional government such as Great Britain and the United 
States, and to the present international relations of sovereign states, 
has found little, if any, support from modern publicists ". (Award 
of the Tribunal of Arbitration at the Hague, Sept. 7, 1910. Of. Scott's 
Cases on International Law, p. 263.) 

Noteworthy, along with this case, are the several instances where 
counsel for states have sought to secure recognition of the doctrine of 
international servitudes without success in the following cases: The 
Aafand Islands Question, in which the Committee of Jurists stated 
that " the existence of international servitudes, in the true technical 
sense of the term, is not generally admitted"; and the Wimbledon 
Case, in which the Permanent Court of International Justice in 1923, 
in its majority opinion, held that the doctrine of international servi- 
tude must be '* construed as restrictively as possible and confined 
within its narrowest limits" and that the question whether it was 
proper to use the term international servitude was a question w which 
is moreover of a very controversial nature ", and that it is doubtful 
u whether in the domain of international law there really exists servi- 
tudes analogous to the servitudes of private law ". (The British Year 
Book of International Law, 1925, pp. 114-115.) 

There exist recent cases, however, notably The Dutch Mimng Case 
(1914) and several cases adjudicated in the Swiss Federal Court, 
which affirm the doctrine. In a more or less restricted application, 
Cobbett> Oppenheim, and Penwick affirm it. On the other hand, 
Franz von Liszt, de Louter and Niemeyer were generally opposed to 



STATUS OP KWASTTUSTG I2ST INTEKSA.TIOHAX, LAW 123 

But whether the doctrine of international servi- 
tude be accepted or rejected as a sage and whole- 
some tenet in international law, it is quite obvious 
that it has no application to the case of interna- 
tional political leases. In the latter case the situa- 
tion evidently is one of a broad transfer of political 
and jurisdictional rights to the grantee or lessee 
state. This is quite different from mere granting 
of freedom of passage for commercial vessels along 
an inland watercourse of another state, or of demili- 
tarization arrangements, or of neutralization of a 
canal. 89 Consequently most publicists do not classify 

the application of the private law of servitude to international situa- 
tions. De Louter condemned it as a dangerous relic of the early 
influence of Roman and feudal law; while Niemeyer regarded the 
attempted analogy as worthless and misleading. Professor McNair, 
who describes the views of the above publicists, himself con- 
cludes that international law "is inclined to reject the offer made 
by text-writers of a ready-made set of rules borrowed from . the 
civil law of servitudes/' and notes that " its cautious reluctance to 
accept the civil law of servitudes ' lock, stock and barrel' is probably 
justified by the difference between dominium and iwperawn". He 
concludes, therefore, that " the attempt to apply to these restrictions 
the terminology and conceptions of the Roman law of servitudes is a 
legacy of a states system that has passed away and will probably do 
more harm than good ". ( The British Year Book of International Law, 
1925, pp. 111-126.) 

We may, then, conclude with Professor Hyde: " It may be greatly 
doubted, therefore, whether, in view of the differing opinions of 
statesmen, the term serves to point to definite limitations of control 
having a distinctive and recognizable character in law. For that 
reason its use is believed to obscure rather than clarify the perception 
of what takes place when contracting States undertake to burden 
territory with restrictions in favor of a non-territorial sovereign." 
(Hyde, C. C. International Law, Vol. I, pp. 276-276.) 

* 9 Thus, the leases of Guant&namo and Bahia Honda from Cuba to 
the United States are properly called international political leases, 
not servitudes. (Fenwick, C. G. International Law, p. 262.) 



124 STATUS OP KWANTTHSTG IN INTERNATIONAL LAW 

such political leases as the Kwantung lease with 
servitudes, but call them, more correctly, interna- 
tional political leases. Dr. Lauterpacht, the leading 
exponent of the private law analogy, deals with such 
political leases as Kwantung as separate interna- 
tional situations. 40 

In view of these considerations it is more accurate 
and less confusing to refrain from characterizing the 
Kwantung leased territory as an international servi- 
tude. 41 One need but recall that, during the Russo- 
Japanese war, this leased territory was regarded by 
the belligerents, by China, and by outside neutral 
states very much as if the lease itself were the terri- 
tory of the leaseholder for all purposes of war and 
neutrality, the doctrine of international servitude 
having no application, to realize the inappropriate- 
ness of the analogy of these political leases to ordi- 
nary leases of property in private law. 

* Lauterpacht distinguishes between such "political leases" and 
international leases of a " private law type ", the latter including cases 
where one state grants to another a piece of land for commercial 
purposes only, or for transit of goods. The distinction is necessary 
because the question of sovereignty and of political jurisdiction is 
involved in the political lease. (Lauterpacht, op. cit., pp. 185 ff.) 

41 1 find myself , therefore, in complete agreement here with the 
conclusion of Dr. L&on Yang, whose dissertation on leases in China 
has but recently been published. (Yang, L&m. Les Territoires a bail 
en Chine, p. 80.) 



CHAPTER 
THE STATUS OF KWANTTJIS'G IN INTEBNATIOSTAL LAW 

1. The Rule of Construction of Lease Conven- 
tions. Dr. Lauterpacht, the Viennese publicist, who 
has recently published an extremely valuable work 
on the affinities of private law and international law, 
has written specifically to the point as to whether 
treaties, as contracts in private law, and lease con- 
ventions in particular, should be construed under the 
ride of " restrictive interpretation " in favor of the 
grantor. Accepting the essential identity of treaties 
with contracts in private law, 1 he notes the tendency 
of publicists to accept the rule of restrictive interpre- 
tation in favor of the state whose sovereignty is 
affected. He continues: " Now, the maxim of in 
dubio mitius is certainly a well-f ounded rule of pri- 
vate law, but it is only a subsidiary means of inter- 
pretation, subject to the dominant principle which 
says that effect is to be given to the declared will 
of the parties and that the compact is to be effective 
rather than ineffective." 2 Thus, he concludes that, 
while recent publicists haye rendered much lip-ser- 
vice to the principle of " restrictive interpretation " 
in such cases, so much so that it has almost become 
a "catchword ", " it is obvious that neither the 

1 Lauterpacht^ H. Private Law Sources and Analogies of Inter- 
national Law, p. 156. 
* Ibid., p. 179. 

125 



126 STATUS OF KWAISTTTJNG IN IKTEEN ATIOETAL LAW 

science of international law nor international tribu- 
nals can, in the long run, act upon such doctrine 
without seriously jeopardising the work of inter- 
pretation ". 8 

Dr. Lauterpacht 's general position as to " the al- 
leged principle of restrictive interpretation of treaty 
obligations ", presumably applicable in favor of the 
state whose sovereignty is in some way restricted 
in a treaty, has been emphasized here because, when 
he deals with leased territories in China, he obvi- 
ously departs from the very conclusions he has 
sought to establish. This is done on the assumption 
that international political leases, established by 
treaties in which the word " lease " is used, present 
situations different from those he has previously dis- 
cussed. Dr. Lauterpacht holds that a legitimate occa- 
sion arises for the application of the rule of restric- 
tive interpretation when international treaties " em- 
ploy expressis verbis such technical terms of private 
jurisprudence as lease, mandate, prescription, pur- 
chase, servitude, usufruct, trust, due diligence ".* 
These, he holds, are clear conceptions of private law, 
perfectly understood by the signatories to treaties 
containing them, and that, since states themselves 
have had recourse to such terminology, it must fol- 
low that they know and agree upon the concepts 

:*/btc&, p. 180. Dr. Lauterpacht cites dicta from the judgment of 
the Permanent Court of International Justice in the Wimbledon 
case, and its advisory opinion concerning the Polish Postal Service in 
Danzig, in support of his position. 
, pp. 181-182. 



STATUS OF KWANTUNG EST INTEBNATIONAL LAW 127 

therein involved when negotiating such treaties. Of 
all such instances, he holds, "international leases 
and mandates seem to be best suited for the purpose 
of illustrating the problem ". Thus, his conclusion : 5 

" . . . Whenever in a treaty a generally accepted term of 
private law is being used, the interpretation and construction 
of the treaty must, unless otherwise provided, follow the prin- 
ciples generally recognised as implied in this particular term." 

What strikes one, first, with regard to this un- 
qualified conclusion is that, for this general asser- 
tion, Dr. Lauterpacht cites no authority, either of 
publicists or of decisions, judgments or opinions of 
international tribunals, or furnishes any evidence de- 
rived from the practice of states. Such as he does 
cite, whether the opinions of publicists, the judg- 
ments of international tribunals, or evidential fact, 
from the practice of states is clearly in support of a 
contrary position, evidence strengthening his general 
position with regard to the non-applicability of the 
rule of restrictive interpretation, and nowhere made 
applicable to international leases. Emphatically, it 
may be said with respect to these China leases that 
there is no evidence that at any time the practice 
of states in interpreting their status placed any re- 
liance on private law principles of interpretation of 
a contract or a lease. 

*Ibid., p. 190. 

6 Ibid., pp. 178-190. An exception would, perhaps, be Hatschek. To 
reject the position that these leases are "disguised cessions" is not 
to compel one to accept the opposite extreme that they are perfectly 
analogous with leases in private law. 



128 STATUS OF KWANTUNG IN INTERNATIONAL LAW 

Again, Dr. Lauterpacht holds that the term 
" lease " is a "general conception of law and a 
terminus technicus "J He, therefore, asserts that 
"it is entirely unwarranted to assume that when 
used in a public treaty it becomes entirely meaning- 
less, and that it admits of the international owner- 
ship, L.e., sovereignty, being vested in the lessee 
State ". In criticism of this assertion it may be said 
that it may be fully agreed that sovereignty is not 
possessed by the lessee state without concluding, as 
does Dr. Lauterpacht, that the term " lease " is en- 
tirely meaningless. Objection is rather to his as- 
sumption that the signatories to these lease conven- 
tions in China did, as a matter of fact, use the term 
" lease " with a complete meeting of minds as to its 
private law meaning and the applicability of that 
meaning to an international situation. The realities 
of the period compel rather the conclusion that the 
term " lease " was used, first, as a convenient ex- 
pression, without any attempt to assume a private 
law meaning to be applicable, and, second, that, by 
using the term ""lease ", the principal legal effect 
was to declare that the time for possession of juris- 
dictional rights by the lessee was limited to a speci- 
fied period. Dr. Lauterpacht, without giving further 
evidence as to the intention of the parties to these 
lease conventions, adds support to this conclusion 
by asserting that, " while it is only natural for the 
lessee to regard the lease as approaching cession, the 

p. 189. 



STATUS OF KWASTTUNG IN INTERNATIONAL LAW 129 

intention of the lessor will usually go in an opposite 
direction ".* 

Some question may also be raised as to whether 
the term " lease " is " a general conception of law " 
in the sense that there is uniformity in the various 
systems of private law as to its meaning and inter- 
pretation. 9 Professor Lawrence, whose contribution 
to an interpretation of the international legal status 
of these leased territories has particular value as 
being a contemporary effort, gave cogent reasons 
why it would be manifestly improper to assume the 
application to these leases, particularly to the Liao- 
tung lease, of the powers of lessor and lessee as es- 
tablished in English private law. 10 

A safer rule of interpretation of international 
political leases, therefore, would be this, that special 
emphasis should be placed upon the provisions of 

*Ibid. t p. 189. 

9 Dr. Lauterpacht himself cites one illustration which clearly shows 
that there is not uniformity among private law systems as to the 
interpretation of ordinary leases in municipal law. "According to 
Roman, English, and French law, sub-letting is not prohibited unless 
there is a provision to the contrary in the contract of lease ; according 
to the German and Japanese codes the lessee is, in the absence of an 
express provision to the contrary, not entitled to sub-let." (Op. cit., 
p. 188. Footnote.) 

10 His emphasis may here be repeated: "The matter is dimple 
enough when such things as a house or a flock of sheep are concerned/' 
but, in order to solve the status of these international leases " we must 
qualify the theories of jurists by considerations drawn from the hard 
facts of international intercourse ". Professor Lawrence, therefore, was 
forced to the conclusion that " a lease hi international transactions 
is not the commonplace and innocent affair we know so well in 
dealings with private property "; (War and Neutrality in the Far 
East, pp. 270-272.) (Cf. Westiake, Vol. I, pp. 133-134.) 



130 STATUS OP KWANTTJNG W INTERNATIONAL LAW 

the conventional agreement in any case, that, in 
doing so, effort should first be made to get at the true 
intention of the parties, and that the meaning of 
such private law terms as ' * lease ' ', contained in the 
convention, should be interpreted in the light of the 
entire agreement. It would seem, therefore, that, if 
international law is to conform to the practice of 
states with respect to these leases, Dr. Lauterpacht's 
general rule, that the principle of " restrictive inter- 
pretation " is " only a subsidiary means of interr 
pretation, subject to the dominant principle which 
says that effect is to be given to the declared will of 
the parties and that the compact is to be effective 
rather than ineffective ", is applicable with full rigor 
to international political leases, as to the Kwantung 
lease in particular. 

This conclusion would seem to be strengthened by 
the fact that such international political leases are 
only confused by reference to them as servitudes. 11 
Whatever may be the applicability of the rule of 
restrictive or strict interpretation to so-called state 
servitudes and, as has been presented above, the 
very question as to whether real servitudes do exist 
in international intercourse, and are so recognized 
by international tribunals, is a mooted one this 
rule has no application to leases if the practice of 
states with regard to the China leases be any crite- 
rion for finding a rule of law. No international law 

11 Dr. Lauterpacht nowhere characterizes such leases as servitudes 
and deals with so-called servitudes as separate international situations. 
(Op. c&., pp. 119 ff.) 



STATUS OP KWANTTJ1TG IN INTEBNATIONAL. LAW 131 

is created by the mere assertion, on the part of a few 
writers, that such leases are servitudes and that the 
rule of restrictive interpretation ought to be ap- 
plied. 12 

2. The Real Status of the Kwantung Lease in 
International Law. In contradistinction to the claim 
that these international political leases, such as 
Kwantung, are similar to servitudes in private law, 
the attempt has generally been to describe them un- 
der one or another 'of four categories. Most com- 
monly they have been considered by the publicists, 
particularly at the opening of the twentieth century, 
as " disguised cessions " or territories completely 
alienated to the so-called lessee state under condi- 
tions which are considered to be of no practical sig- 
nificance should the acquiring state choose, at the 
expiration of the lease period, to retain them in 
perpetuity. Secondly, they have been characterized 
as territories over which there exists a form of con- 
dominium or coimperium of the two states concerned, 
the assumption being that each possesses a portion 
of the sovereign rights over the territory* Again 
it has been urged that these leases are to be properly 

12 Cf. Hsia, op. cit^ p. 100; Ban, op. rit^ pp. 332-333; Tyau, 
M. T. Z. Legal Obligations, p. 68. Dr. Tyau makes the following 
assertion: "Now, these leases constitute a species of international 
servitudes, and so will be construed strictly against the beneficiary." 
(p. 68.) The fact is they have never been so construed. He 
quotes Professor Hall that "they conform to the universal rule 
applicable to jwra in re ateena. Whether they be customary or con- 
tractual in their origin, they must be construed strictly. 7 ' The fact 
is that Hall did not refer to leased territories when he made this 
statement. (Cf- Hall, W. E. A Treatise on International Law, p. 167.) 

11 



132 STATUS OF KWAKTTJNG IN INTERNATIONAL LAW 

described as under the occupation of the so-called 
lessee state, more or less as similar to occupied ter- 
ritories in Africa or as occupied territories in time 
of war. Finally, a comparatively small group of pub- 
licists has taken the realistic view that these leased 
territories should not be confused with any of the 
above situations, but should be regarded simply as 
international political leases, unique in themselves 
and exhibiting circumstances under which the lessor 
state retains formal sovereignty over the territory 
concerned, but without the right to exercise it for 
a stated period of time. 

The most uniform of these descriptions of leased 
territories in China, then, has been the attempt to 
characterize them as " disguised cessions ", cessions 
of territory, the reality of which has been concealed 
to serve the amour-propre of the so-called lessor 
state, China, and to veil the hard facts of territorial 
transfer by phrases which are not to be taken as of 
international legal significance. This view will be 
subjected to careful analysis and criticism shortly, 
but it may be well first to comment upon the less 
prevalent conceptions which have been held by cer- 
tain publicists. 

The attempt to describe such leased territories in 
international law as instances of condominium or 
coimperium of two states has been influenced by the 
prevalence of such terminology in private law, an 
influence which has a dangerous tendency, as in the 
case of resorting to the term "servitude " to describe 



STATUS OF KWAISTTUBTG IN INTEBNATIONAL LAW 133 

such international political leases, to confuse inter- 
national situations with private law cases, and to 
conceal the realities of the de facto situations and the 
definite provisions of the treaty stipulations with 
hypothetical descriptions derived from non-analo- 
gous situations. 13 The actual provisions of the lease 
conventions themselves, particularly the original 
Liaotung lease convention of 1898, belie such a des- 
scription. In the Kwantung leased territory the 
sovereignty of China was explicitly reserved to the 
lessor state, while the right to exercise that sover- 
eignty was conceded, for the term of the lease, to 
Eussia, hence to Japan after 1905. 1 * This distinction 
is quite possible in actual practice and is justifiable 
in strict law. 15 It is not mere legalism, for it is a way 
of declaring that, by reserving sovereignty over the 
territory in question the ultimate right of the lessor 
state to recover the lease at the expiration of the 
term specified in the instruments of transfer, and ex- 

18 Dr. Le*on Yang, for example, notes that the status of the Sudan 
has been described as such an instance of c<mdomMwn under the 
Khedive of Egypt and the King of England. (Les Territoires d bail 
en Chine, p. 86.) 

i* This act of lease, however, in no way violates the sovereign 
rights of H. M. the Emperor of China to the above-mentioned terri- 
tory." (Art. I, Russo-Chinese lease convention of March 27, 1898. 
MacMurray, Vol. I, p. 119.) 

15 "Sur un territoire a. bail, la souverainet6 appartient a PEtat 
bailleur et 1'exercice du droit d'administration et de contrdle ap- 
partient a l*Etat preneur. A Fun appartient le droit et a Pautre est 
confie" Texercice." (Yang, op. c& v p. 87.) This statement is clearly 
applicable at least to the Kwantung leased territory, although it may 
be noted, that in the case of Weihaiwei there was no specific clause 
which reserved to China sovereignty over the territory. 



134 STATUS OF KWANTTJSTG IN INTEBtfATIONAL LAW 

tension is operative. Moreover, it is quite possible 
for one state to delegate to another broad, almost 
entire, and, as the lease in question illustrates, entire 
jurisdiction to another state and still retain sover- 
eignty over the territory. 16 The practical application 
of this juristic concept to the case of Kwantung 
draws attention to China's ultimate right of reciovery 
of the territory, while the original instrument of 
transfer and the de facto situation there illustrates 
that there is, in fact, no instance of condominium or 
coimperium in the actual exercise of administrative 
or jurisdictional rights in the Kwantung leased 
territory. 

The description of the .Kwantung leased territory 
as " occupied territory " is equally untenable. 
Whatever application the term might have had to 
Weihaiwei and it is believed that the provision that 
Great Britain should remain in occupation of that 
territory for so long a period as Russia should re- 
main in occupation of Port Arthur was but a way of 
describing the indefiniteness of the lease period, and 
not a proper use of the term " occupation " as or- 
dinarily used in international law- it is quite evident 

"Of. Willoughby, W. W. The Nature of the State, pp. 196 ff.; 
Fimdamental Concepts of Public Law, pp. 324 ff. It is not neces- 
sary to accept the Austinian or poeitivist conception of the state 
and of sovereignty as exclusive of other theories to admit that 
these international political leases are not instances of so-called 
"divided sovereignty ". It is evident, however, that the positivist and 
Austmian view is entirely applicable to the situation of the Kwantung 
leased territory, for sovereignty there clearly remains in one state 
only, namely, Cfcina. (Of. Mattern, J. Concepts of State, Sovereignty 
and International Law, p. 188.) 



STATtTS OF KWANTTJNG IN INTERNATIONAL LAW 135 

that the term has no proper application to Kwan- 
tung. The use of the term " occupied territory " to 
describe the Kwantung lease is faulty, principally 
for two reasons: it tends to confuse the situation 
here under analysis with non-analogous situations; 
and it leads to the danger of presuming that rules 
of international law applicable to certain cases of 
occupation are likewise applicable to Kwantung. 
Occupation usually refers to military occupation of 
a territory in time of war, to temporary occupation 
of territory by one state to prevent external aggres- 
sion or internal disturbance, and may thus relate to 
intervention, while it may also describe actual con- 
trol of a territory, as of hitherto unsettled or so- 
called " uncivilized " areas without the benefit of a 
contractual arrangement with the state or territory 
thus occupied. The case of Kwantung satisfies none 
of these descriptions. 17 

The status of Kwantung leased territory has been 
determined by an agreement between two sovereign 
states ; the territory was already settled and in full 
possession of China before 1898; and it is evident 
that the juridical status of a belligerent state in 
occupation of a territory of another in time of war 
is quite different, and governed by an entirely dis- 
tinct body of rules of international law, from that 
which exists vis-H-vis Kwantung. 1 * 

17 Again I find myself in complete agreement with Dr. Lon Yang, 
who asserts: " Incontestablement le bail international n'a aucun rap- 
port aveb cette definition ". (Yang, op. eft* p. 88.) 

is Thus, the Japanese military, upon belligerent occupation of the 
Kwantung leased territory about Port Arthur during the Russo- 



136 STATUS OF KWANTTHSTG LNT IKTBEISTATlOlSrAL LAW 

But the attempts to characterize leased territories 
in China as illustrations of coimperium of two sover- 
eign states or as occupied territories have been less 
frequent than the. description of them as " disguised 
cessions ", and those terms have apparently been 
as often the result of somewhat careless use of legal 
terminology, without serious attempt to insist on 
their intrinsic applicability, as they have been inten- 
tionally chosen to describe the realities. 

Particularly for the first decade of the twentieth 
century were most publicists, especially the con- 
tinental, and more particularly the French pub- 
licists, inclined to describe these leases in China as 
instances of " cessions deguisees ". Influenced, as 
they were, by presumed analogies in Africa, by their 
eventual fate, by the historical facts which gave rise 
to the view that China might eventually become simi- 
larly dismembered and these territories absorbed in 
complete cession by the lessee states, the view was 
natural, particularly for the publicists who endeav- 
ored to interpret international law so as to conform 
those rules to the realities of international inter- 
course. They concluded, therefore, that the fine 
phraseology of the instruments which transferred 
these leases to foreign states was not to be taken too 
seriously; that the intent of the lessee states was evi- 
dent enough; that China's intent was mainly to 

Japanese war, were subject to the international law of belligerency 
until the formal transfer of the leased territory to Japan was effected 
by the treaty of Portsmouth, and the Sino-Japanese treaty of Peking 
of Dec. 22, 1905. (Takahashi, op. c& v PP- 252 ff ,) 



STATUS OF KWAtfTUNTG DST INTERNATIONAL LAW 137 

" save her face " internationally; and that the time 
limits set in these conventions were evidently not to 
be taken at their face value for, while adequate to 
serve China's amour-propre, they did not preclude 
renewal indefinitely. 19 A representative view of this 
French school, also one of the earliest statements 
after the acquisition of these leases in China, will 
serve to illustrate this reasoning : 20 

"H consiste essentiellement en une convention bilatferale, 
(Tapparence parfaitement libre et nonnale, par laquelle nn 
propritaire d'un sol lone Inhabitation de ce sol a un pays, 
qni devient son locataire. La cession & bail comprend Fusage 
du sol, la r6colte de ses produits, le droit d'y Mtir, de le 
fortifier; elle donne au locataire le droit de s'y eonduire en 
propri6taire veritable, et ne conserve au cessionaire que la nue 
propri6t6. Ainsi la souverainetfe demeure an propri&aire ; mais 

ses droits et son exercise lui sont ravis Et personne, 

non plus qne les spectateurs, n'est dupe de la com6die. Au 
bout du temps fix6, le propri6taire peut avoir perdn k mfemaire 
de son droit; et le locataire, celle de son engagement; ce 
dernier est dans la merveilleuse situation d*un homme qui 
occupe une maison contre le gr6 du propri6taire, mais s'y est 
barricade f ortement et attend que la force publique Ten d&oge. 
Mais, en politiqne, la force publique Internationale, qui 

19 Dr. L6on Yang seeks to distinguish between the descriptions of 
these territories as " cessions d6guis6es " and instances of " alienation " 
or " annexion n . For this, I find little, if any, justification. The des- 
cription of the latter was always accompanied with a belittling of 
the convention clauses aiming to preserve China's ultimate sov- 
ereignty and right of recovery, and, therefore, was but another way 
of describing them as "disguised cessions". (Of. Yang, op. cit., 
PP. 82, 91.) ' 

20 Pouvoirville, A. de. "Les fictions Internationales en ExtrSme- 
Orient ", in Revue G&nerale de Droit International Public, Vol. VI, 
1899, pp. 118-119. 



138 STATUS OP KWAISTTTOTG H5T ItfTBBffATIONAL LAW 

serait repr6sentee & peu pr6s par Tin arbitrage, ne se derange 
point pour expulser tin locataire tout puissant, qui au bout de 
longues ann6es, declare prendre Fusage d*un droit pour le 
droit lui-mme, et s'approprie, sous le regard complaisant de 
univers, la nue proprit6 avec Fusufruit. Rappellerons-nous 
que File de Hong-Kong fut primitivement c6d6e & bail aux 
Anglais?. . , . Seulement, et malgr6 la duplicit6 et Fhypo- 
crisie 6videntes d > un .tel instrument, il demeurera toujours 
parmi les plus agrable & ceux qui sont eontraints de recourir & 
Fun quelconque des moyens diplomatiques modernes, parce 
qu'il manage Famour-propre des deux contractants : Fainour- 
propre de celui qu^on d^pouille, qui n'a pas Fair de cMer, et 
qui, en droit, ne e6de pas sa souverainet6; et Famour-propre et 
la respectability de celui qui s'approprie, parce que son larcin 
se parf ait & longue 6cheance, et parce que ceux qui le com- 
mettent peuvent se dire forcfe par Facte *insuffisant* que 
d'autres ont sign6." 

This thesis, maintained even more rigorously by 
other writers of the French school of " disguised 
cessionists r> , was maintained notably in two disser- 
tations for the doctorate, by M. L. Gerard, before the 
faculty of Nancy in 1903, and M. Jean Perrinjaquet, 
before the faculty of Bordeaux in 1904 21 Dr. Gerard 
maintained that, ^.s evidenced by the abnormality of 
the undertaking ostensibly described in the lease con- 
vention, this procedure was merely a device for an- 
nexation of territory. In the nature of f the case the 
lessee state, having been given the right to exercise 
exclusive jurisdiction in such territory, was the sov- 
ereign in fact. They, in his view, thus became " dis- 

21 G&ard, L. Des cessions d&gw&ees de territoire en droit inter- 
national. Nancy, 1903; Perrinjaquet, J. Les cessions temporaire de 
tenitoire. Bordeaux, 1904. 



STATUS OF KWAHTTJSTG IN HTTEBtfATIONAL LAW 139 

guised cessions ", producing all the logical conse- 
quences of outright cession. 

Dr. Perrinjaquet similarly held that, if these con- 
ventions were viewed in their totality, the net result 
would appear to be that the actual sovereignty over 
the leased territories would be seen to have been 
transferred to the so-called lessee state, at least for 
the period of the lease. He admitted that these con- 
ventions, for the most part, contained specific clauses 
reserving nominal sovereignty to the lessor, but as- 
serted that this formal reservation did not accord 
with the realities evident in each case. Moreover, he 
held that, in spite of the more or less definite fixation 
of dates for the termination of these leases in China, 
the so-called lessee states would likely forget them, 
and that the lessor might well regard them as a 
trompe I'oeil an illusion. 22 ,, Hence the conclusion 
that these leased territories are but " cessions de- 
guisees ". Elsewhere Dr. Perrinjaquet maintained 
the same thesis : .** 

* Dans toua ces cas, si on analyse les traitSs avec soin et si 
on en engage le caraetere r6el, on s'apergoit bien vite que la 
cession ^administration et le bail temporaire constituent des 
annexations pures et simples, aeeompagn&s parfois chme 
vague promesse de restituion & terme dont nous aurons a 
apprScier la sinc6rit6/* 

22 Cf. Criticism of M. Perrinjaquet's thesis toy Dr. L^on Yang, op. 
tit., p. 94.) 

2* Perrinjaquet, J. " Des annexions (Mguis^es de territoires ", article 
in Revue Generate de Drait International PubKc Vol XVI, 1909, p. 345. 
A similar view was expressed editorially in this journal in 1908, Vol. 
XV, pp. 124.125. 



140 STATTTS OF KWA3TTU3TG IN ESTTEBNATIOISTAL LAW 

These views are characteristic of a dozen French 
publicists whose statements might be given, includ- 
ing those of Despagnet, Fauchille and Merignhac, 
who characterized these leases with the following 
phrases " cession deguisees ", " pretendues ces- 
sions a bail ", " annexion veritable " or " une verit- 
able alienation du territoire ", 24 Similarly, the Bel- 
gian publicist, M. Nys, after quoting Q-erard and Per- 
riijaquet, and pointing out that the sovereignty of 
the lessor state is formally reserved in these conven- 
tions, concluded that " the cession by lease in- 
volves the forfeiture [decheance] of the ceding 
state ", 25 Louter, the Dutch publicist, saw in these 
lease conventions a means of ultimate annexation. 26 
The German writers, Franz von Liszt and Laband, 
may also be described as " disguised cessionists ", 27 

With a few notable exceptions British and Amer- 
ican publicists have been inclined to the same view. 

2 * Of. Despagnet. Coura de droit international public. 4th ed. Paris; 
Fauehffle. Trait* de droit international public. 1921-1925, Paris; 
M&igohac. Tratie de droit international public. 1905-1907, Paris. 
" We must then agree with Despagnet who, after remarking that the 
restoration of the territory at the end of the specified term is very 
unlikely, says that these pretended leases are alienations disguised in 
order to spare the susceptibility of the state at whose cost they are 
made." (Westiake, J. International Law, Vol. I, p. 134.) (Of. Yang, 
op. cit^ PP- 91 ff. This gives a brief review of the views of the above- 
mentioned publicists and a criticism of them.) 

25 Nys. Le droit international. Brussels, 1912. Cited by Yang, 
op. c&, p. 96. 

Yang, op. cit., p. 96. 

Ibid pp. 97 ff . Dr. Yang quotes the Japanese writers, Yoshitomi 
and Takahashi, as agreeing that these leases should be considered 
but situations inevitably leading to complete annexation by the 
so-called lessee state. . 



STATUS OP KWANTTTKO IK INTERHATIONAIj LAW 141 

John Westlake, while rejecting the analogy with 
leases in private law, concluded in entire agreement 
with Despagnet, favoring the view that these leases 
are " disguised cessions " since that apparently was 
the official view of the German and Russian govern- 
ments, and since, he held, one should not be disillu- 
sioned by the terms of the lease conventions, which, 
noticeably, made no provision for rental of any sort 28 
Lawrence doubted that the lessor, China, retained 
sovereignty over the lease, evidently much as did 
Gerard and Perrinjaquet. He concluded that these 
leases in China were ' ' cessions of territory for a term 
of years, and it may be added that restoration at the 
end of the term is often somewhat problematical ". 29 
Of Kwantung in particular he wrote in 1904 : * * The 
words which reserve the sovereignty of the lessor 
are fine phrases used for the purpose of disguising 
the reality of territorial transfer. " so Phillipson, 
who admited that strict law and practice differed in 
the case of such leases, concluded that the practice 
was definitive in that as such they were evidently 
" disguised cessions and amount, therefore, to com- 
plete alienations ", 81 Addressing himself to these 
leases in general, Cobbett asserted that they " are 
for the most part only alienations in disguise ". 8a 

28 Westlake, op. c# v p. 134. 

2 Lawrence, T. J. A Handbook of Public International Law, p. 57. 
(10th ed. by P. H. Winfield.) 

80 Lawrence, T. J. War and Neutrality in the Far East, p. 207. 

81 Phillipson, C. International Law and the Great War, p. 276. 

82 Cobbett, Pitt Cases and Opvrnons on International Law. Vol. I, 
p. 110. (3rd ed.) This agrees with Oppenheim, op. cit^ Vol. I, p. 364. 
(4th ed., 1928.) 



14:2 STATUS OF KWA23TTTTNG IN INTERNATIONAL LAW 

The Earl of Birkenhead evidently considered such 
leases as but stages toward complete annexation, to 
be accomplished " in the easy graduation of the as- 
similative process " which might be expected from 
the broad grant of jurisdiction to the lessee. Thus 
he concluded that " if a European country obtains 
a ' lease ' from China, fortifies its acquisition, and 
undertakes responsibility within its limits, no devices 
of nomenclature can disguise the charge which has 
been covertly effected ".** More recent writers evi- 
dently incline to the same view. Brierly refers to 
these leases by conventional agreement as " no more 
than a diplomatic device for rendering a permanent 
loss of territory more palatable to the dispossessing 
state by avoiding any mention of annexation and 
holding out the hope of eventual recovery r '. 84 

American publicists have less frequently written 
to the point, but it appears that, when they have, 
many have been somewhat incautious, relying, in the 
main, upon continental writers for their opinions. 
Professor Hershey, who cites as his- authority 
L. Gerard, J. Perrinjaquet and A. Pouvoirville, and 
notes Westlake's agreement on this point, naturally 
concludes that these leased territories in China 
" have aptly been described as disguised or indirect 
cessions''. 85 Dr. Edmunds, characteristically ex- 

88 Earl of Birkenhead (F/E. Smith), International Law, p. 64. 
(1900 ed.) 

* Brierly, J. L. The Law of Nations, pp. 07-98. 

85 Hershey, Amos S. Essentials of International Public Law, 
pp. 184ff. 



STATUS OP KWAKTTJNG IN INTERNATIONAL LAW 143 

treme and not particularly careful about terminol- 
ogy, calls them " disguised cessions ", adding that 
" the League of Nations cares nothing for little ob- 
stacles of that kind, however, when the beneficiary is 
one of the Great Powers ". 86 Professor E. C. Stow- 
ell, in a recent volume, while citing Dr. Lauter- 
pacht's criticism of the term " disguised cessions ", 
evidently prefers to conform with the popular view : 
" In order to avoid irritating national susceptibil- 
ities and arousing international jealousies through 
a cession or annexation, acquisition of territory is 
sometimes disguised as a lease Various por- 
tions of China have been made the object of a lease, 
as that of Kiao-Chau in 1898 to Germany ". 8T He 
does not distinguish the lease in China from the gen- 
eral category which he calls instances of disguised 
acquisition. Many leading American publicists do 
not seem to have written especially to the point at 
all. 88 

Where such an array of distinguished publicists 
in international law appears in strong support of 

86 Edmunds, Sterling E. The Lawless Law of Nations, p. 84. 
Dr. Edmunds is slightly in error in asserting that the Kwantung lease 
was explicitly non-assignable in the original lease convention of 1898. 

87 Stowell, E. C. International Law: a restatement of principles in 
conformity with actual practice, pp. 341-342. 

88 John Bassett Moore, in his monumental Digest, discusses only 
the question of extraterritoriality in respect to leased territories in 
China. (Moore's Digest, Vol. H (1906), pp. 639 ff.) Professor C. G. 
Fenwick, however, calls them for what they are, "leases" in inter- 
national law but does not distinguish political and commercial leases, 
and notes that in these leases in China " the sovereignty of the lessor 
state over the territory is more nominal than real ". (Fenwick, In- 
ternational Law, pp. 243-244.) 



144 STATUS OP KWANTTJNG IN IBTTEBNATIOBTAL LAW 

the assertion that these leased territories in China, 
including the Kwantung lease, are properly to be 
characterized in international law as " disguised 
cessions " it is with some diffidence that a firm dis- 
sent may be entered against them. But in doing so, 
a point of view will be presented which, it is believed, 
would be entirely acceptable to a majority, especially 
of .the recent publicists, because attention is here 
drawn to an unique situation which apparently has 
too often been presumed to have precedents and 
analogies in other places of the world, especially in 
Africa. The publicists cited have generally ad- 
dressed themselves more directly to political leases 
in general, not to leased territories in China, or to 
the Kwantung lease in particular. However true 
their general assertions may have been, as evidenced 
by the incontrovertible facts of the dismemberment 
of Africa, they have no exact application to China, 
which is neither dismembered, nor likely to be, nor 
devoid of sufficient international prestige to bring 
about, what already has been evidenced by the cases 
of Kiaochow and Weihaiwei in Shantung province, 
the eventual recovery of one or more of the remain- 
ing leased territories still extant* 

The phrase of the late Professor Lawrence, who 
himself held that the lease of Port Arthur and of 
Dalny (Dairen) was an instance of a " disguised 
cession ", reoccurs with added utility here: " We 
must qualify the theories of jurists by considerations 
drawn from the hard facts of international inter- 



STATUS OF KWANTUNG IN Itf TEKNATIONAL LAW 145 

course. " This concept of international political 
leases in China as but veiled cessions of territory to 
the so-called lessee states was, at least in one sense, 
justified by the historical circumstances which gave 
them inspiration* No one could anticipate then what 
the future had in store for China or for these leases 
in particular. It was an era of foreboding portents 
in a China weakened and humiliated by the " race 
for concessions " of 1898 and the Boxer Eising 
which followed. It looked like another Africa to 
some observers! But times have changed: China 
has recovered two of these * territories, one as re- 
cently as 1930. China has become a world power 
of no small importance ; has occupied a non-perma- 
nent sea.t in the Council of the League of Nations, 
and has shown considerable vitality with respect to 
recovery of numerous foreign privileges in China 
granted in the nineteenth century. They, the phrase 
of Professor Lawrence, which he himself would per- 
haps be only too ready to apply to this changed 
situation were he living, that " old theories which 
fail to explain new facts are themselves in need 
of modification ", has emphatic application here. 
" Law ", said he, " was made for men and states, 
not men and states for law M . 89 

8 Lawrence, T. J. War and Neutrality in the Far East, p. 271 
(1904). "Although the China leases were looked upon by some as 
veiled cessions, it now seems recognized, especially since the return of 
some of them to China, that Chinese sovereignty in the areas con- 
tinued in spite of her lease of full powers of administration for a 
term of years." (Wright, Q. Mandates wider the League of Nations, 
p. 306.) 



146 STATTTS OP KWASTTUSTG IN INTERNATIONAL LAW 

This is not to say that there is any greater definite 
assurance that the Kwantung leased territory, now 
held by Japan tinder the extended term until 1997, 
is likely to be restored in the near future. It is to 
say, however, that there are now precedents for 
such recovery of the leases by China, and that, even 
with respect to Kwantung itself, the Japanese Gov- 
ernment officially has taken a view of the interna- 
tional legal status of the territory in lease which 
repudiates the concept of " disguised cession ". The 
phrase itself has never had definite official usage 
naturally. With respect to Kwantung, the Japanese 
Government, by resorting to legal, if strong and un- 
usual, means to extend the period of the lease be- 
yond the original date of expiration (1923) to ninety- 
nine years, by that very act officially admitted that 
Kwantung is an international political lease-r-a lease 
not a cession of territory in perpetuity. 40 

There are, however, additional considerations 
which may be adduced to criticize the application 
of the term " disguised cessions " to these leased 

* Professor Quincy Wright well describes the difficulties involved 
in situations where one state possesses sovereignty over a territory 
within which another has rights of jurisdiction, asserting that these 
legal distinctions are acquiring greater practical importance as inter- 
national law is gaining sanctions through international organization. 
He correctly notes that " while before the war it was customary to 
refer to Chinese leases as veiled annexations, few would so consider 
them today". (Mandates under the League of Nations, p. 372.) 
Again: "Leases under international law either for a term of years 
or in perpetuity give clear evidence of the customary recognition 
of the possibility of dissociating sovereignty from its exercise." (Ibid., 
p,'WD 



STATUS OF KWAKTUNG IN INTERNATIONAL LAW 147 

territories in China, even as of 1898. The Chinese 
Government at the time may have preferred the 
term " lease " to " cession in perpetuity " for pur- 
poses of preserving their own self-esteem and f or- 
fending the political storm which may have broken 
earlier had these leases been definitely alienated to 
foreign sovereignties* But, in strict law, there is no 
evidence in those lease conventions that the intent 
of China was identical with that of the parties de- 
scribed as the lessees. There is evidence, however, 
that the Chinese Government did not regard them 
thereafter as territories completely alienated; in the 
case of Kwantnng, for example, protracted negotia- 
tions took place between Russia and China during 
1901 to 1903 with respect to specific jurisdictions! 
rights in this leased territory. It would, then, be 
highly presumptuous on the part of the lessees, and 
illogical in strict law, to assume that the reservatio 
mentcdis of the lessees alone gave adequate grounds 
for constructing a legal principle that these leases 
were other than what they were called in the instru- 
ments of lease. 41 

Bejecting the theory that these leases in China were properly 
described as " disguised cessions ", an entirely tenable and hitherto 
almost unheard of emphasis has come from the Viennese publicist, 
Dr. H. Lauterpacht. "It is submitted", he says in criticism of this 
concept, " that this view is neither sound in law nor in accordance 
with the provisions of the treaties in question as interpreted by the 
actual practice." (Private Law Sources and Analogies of International 
Law, p. 185.) He is rightfully emphatic that it is necessary to con- 
sider the intention of both parties to these lease conventions, if one 
is to be realistic and juristic. I do not find, however, as Dr. Lauter- 
pacht apparently does, any evidence which would describe the in- 
12 



148 STATUS OF KW^TTJKG IN ESTTEBtfATIOISrAL LAW 

This is not to say that the texts of the lease con- 
ventions themselves did not generally concede an 
almost complete waiver of jurisdictions! rights in 
favor of the lessee states. But the assumption that 
China gave " tacit consent " to this idea of " dis- 
guised cession " is neither evidenced by facts which 
can be adduced to describe China's real intent, nor 
justified by subsequent circumstances. 42 

What did actually occur in the case of these leased 
territories in China, including the Kwantung lease 
to Eussia and later to Japan, was that China retained 
the formal right of sovereignty over the territories 
in question, but without the right to exercise it in 
the ordinary way during the period of these leases. 
The reservation of sovereignty, however much the 
right to exercise jurisdictional authority for the 
period of the lease was granted to the lessee state, 
was by no means a fiction. In some cases, as origin- 
ally at Kowloon, opposite Hong Kong, until Decem- 
ber of 1899 at least, this reservation of sovereignty 

tention of China, since the lease conventions themselves generally do 
not describe China's rights under her reserved sovereignty, and, in 
the case of Weihaiwei, there was no specific reservation of China's 
sovereignty at all. It does appear that China's intent dearly was 
to provide for eventual recovery of the leases if, and when. 

42 est possible, il est meme plus que probable que 1'intention 
de I'&at preneur est telle. Mais la Chine pense autrement. Assaillie, 
menaced par une force militaire suprieure, en pareilles circonstances 
elle t&che tout naturellement de sauver tout ce qu'elle peut sauver 
dans la convention impoee'e. . . . . On dit alors que les intentions de 
PEtat preneur ddivent primer celles de FEtat bailleur, car il est, en 
1'espece la partie principale, tant donne* que FEtat bailleur droit 
s*indiner et se confonner a sa volonte". C'est done le droit du plus 
fort! "(Yang, op. cit^ p. 101.) 



STATUS OF KWANTUffG IN iSTTEKBTATIONAL IiAW 149 

was accompanied by a declaratory statement of 
specific rights of jurisdiction which might still be 
exercised by China. So also at Kwantung at the out- 
set, for there were certain clauses in the original 
lease convention of 1898 which reserved minor juris- 
dictional rights to China. That these lapsed long 
before the Japanese obtained possession of the 
Kwantung lease is evident. In the case of Kwan- 
tung, then, this reservation of sovereignty would 
have been almost a fiction in fact but for one con- 
sideration:, there is a time limit fixed for this lease, 
and that is sufficient evidence of the existence of 
Chinese sovereignty over the lease itself, aside from 
the explicit statement in the convention of lease that 
the lessor retains sovereignty. 

In strict law, then, China remains the sovereign, 
but without the right to exercise the usual rights 
of sovereignty. Few have been the publicists who 
have recognized this view, but it is obvious that eon- 
temporary facts have increased the number of them. 
Oppenheim, who admitted that " f or all practical 
purposes " and during the period of the leases these 
were similar, as far as exercise of jurisdiction was 
concerned, to " cessions of pieces of territory ", 
nevertheless, pointed out that " on one and the same 
territory can exist one full-sovereign state only " 
and that, therefore, leased territories were " appar- 
ent, but not real, exceptions to the rule ".** Sir 
Thomas Barclay, who presented to the session of the 

Oppenheim, L. International Law, Vol. I, p. 361. (4th ed. 1928.) 



150 STATUS OP KWABTTUHG IN INTBBNATIOKAL LAW 

Institute of International Law at Florence in 1908 
a proposal with respect to the responsibilities of 
states actually in possession of protectorates, 
spheres of influence and leases, took issue with West- 
lake 's view that these political leases were " dis- 
guised cessions *V* 

Refusing to accept the theory of " disguised ces- 
sion ", the Q-erman publicist, TJllmann, drew atten- 
tion to the situation at Kiaochow, both in strict law 
and in fact, and, although this political lease has 
generally been regarded as the most conspicuous ex- 
ample of a lease originally intended to be permanent 
and to tend to become actually annexed territory, 
he dissented. His dissent is clear and tenable. It is 
based on a distinction between the reservation of 
sovereignty to China, meaning here principally the 
right to recover the territory at the end of ninety- 
nine years, and the delegation of the right to exercise 
jurisdictional authority there for the term of the 
lease/ 5 Actual annexation, he pointed out, had con- 
sequences not evident at Kiaochow: the Chinese 
residents could not be considered in any sense Ger- 
man nationals until they had been naturalized. The 
situation at Kwantung is identical in that the Chinese 
residents did not become Russian, or later Japa- 
nese nationals, by the convention of lease. Nor has 
any provision been made since then for acquisition 
of Japanese nationality by them. Potentially these 

44 Of. Yang, op, cit., p. 103. 
Yaog, op. eft* p.' 104. 



STATUS OF KWAKTTJira IN USTTEBNATIOSTAL LAW 151 

leases might have tended to become cases of actual 
ceded territory in perpetuity and full sovereignty, 
bnt actually they are not/* 

In conclusion, then, it is evident that the only accu- 
rate description of these international political 
leases in international law, and the only adequate de- 
scription which accords entirely with the realities 
of the situation, is that which calls them for what 
they are international political leases. No useful 
purpose is served by confusion of them with other 
international situations such as servitudes or ces- 
sions, or with superficially similar cases which, upon 
analysis, appear to have entirely different charac- 
teristics and furnish no precedents. 47 The Kwan- 

* Professor George Graf ton Wilson of Harvard, in his lectures 
given to the Naval War College, made this situation quite dear 
as early as 1912. " The idea that the lease was in fact an actual 
alienation of the territory seem* to be contrary to law and contrary 
to fact* though it may be that such leased territory may, at some 
future time, more easily pass under the actual ownership or sover- 
eignty of the lessee." (Naval Wear College: International Law Situa- 
tions, 1912, p. 06.) Some years earlier he had suggested that there was 
the element of a " positive servitude " in these China leases, but noted 
at the time that " Chinese authority was for the most part at an end 
within the leased areas ". (Naval War College: International Law 
Situations, 1007, pp. 19-15.) 

"Thus, Dr. Lauterpacht advisedly defends the term "lease" to 
apply to these international political leases in China.. (Op. dt. f 
pp. 188-180.) Also, Dr. C. G. Fenwick properly calls them "long- 
term leases .... without prejudicing the formal sovereignly of the 
lessor state". (International Law, pp. 243-344.) Dr. L6on Yang, who 
apparently has subjected these leases in China to the most thorough 
scrutiny of any recent writer, concludes: " Le bail entre Nations eat 
tout tmiment un bail du droit international. Baptisons-le ' Bail 
international ', si vous voules. II est un phenomena nouveau, un acte 
juridique ant generis dans les rapports entre les Nations. H ne faut 



152 STATUS OP KWANTTJHFa IN INTEBtfATIONAL LAW 

tung leased territory is an example of such an inter- 
national political lease where the sovereignty of the 
lessor state, China, is safeguarded by the explicit 
right to recover the territory upon the termination 
of the lease period, but where, for the remaining 
years of the lease, the jurisdictional rights of Japan 
are practically unimpaired. "Were international law 
to square with the actual facts of the de facto situa- 
tion evident there ever since 1905, when Japan ac- 
quired the lease, and to take adequate account of the 
provisions of the original document of transfer of 
1898, it would be necessary to state clearly that 
sovereignty, on the one hand, the ultimate authority 
over the territory, the very source of the delegated 
powers given to Japan, and, on the other hand, juris- 
dictional rights are two separate and distinct things. 

pas le confondre avec une catgorie d'acte prdexistante quelconque 
du droit des Gens. On ne peut pas non plus le comparer avec 
Institution des baux du droit priv6." (Yang, op. cit., p. 107.) Cf. 
Wright, op. cit., pp. 394-395.) 



CHAPTER 

THE EXTENSION OP THE LEASE PEBIOD 

1. The Legality of the Sino-Japanese Treaty and 
Notes of 1915. The international legal status of the 
Rwantung leased territory since 1923, the year for 
the expiration of the term of the original lease given 
to Russia, naturally depends upon the validity and 
binding force of the Sino-Japanese treaty and notes 
of 1915 which extended the term to ninety-nine years, 
i. e., to 1997. The general circumstances attending 
these negotiations, the far-reaching political sig- 
nificance of the so-called " Twenty-one Demands " 
imposed upon China during those months preceding 
May, 1915, and the Japanese resort to an ultimatum 
to compel China to accept certain of those demands, 
are well known. Questions of policy and of interna- 
tional morality, however, are not germane here ex- 
cept in so far as they may affect the actual juridical 
character of the agreements which eventuated from 
those circumstances. Moreover, those negotiations 
were conducted in such a manner, especially as mani- 
fested in the still somewhat clouded r61e of Count 
Okuma and President Yuan Shih-k'ai, that it is ex- 
ceedingly difficult to venture judgment either on the 
intrinsic unethical character of the whole affair or 
on the binding force of those agreements if the ap- 
proach be exclusively from moral considerations. 

163 



154 THE EXTENSION OF THE LEASE PEEIOD 

We are concerned here solely with the juristic 
question as to whether Japan remained in lawful 
occupation of the Kwantung leased territory after 
March, 1923. Japan has, of course, remained at 
least in de facto occupation of the leased territory 
throughout the period from 1923 to the present. 
Moreover, the Chinese Government has not officially 
maintained the position that the period of Japan's 
lease actually terminated in 1923. This may be sur- 
prising to some, but the import of this statement is 
clarified by the assertion that the Chinese Govern- 
ment, neither at the Paris Peace Conference, nor at 
the Washington Conference, nor in the communica- 
tion to the Japanese Government in March, 1923, 
actually declared that they would not in future be 
bound to observe Japanese authority in Kwantung. 
What the Chinese Government have officially done 
is to declare two things, first, that the treaties and 
notes of 1915 exist but should "be abrogated, and sec- 
ond, that China reserves the right to open the ques- 
tion whenever she believes an opportune moment has 
come for doing so. Both of these declarations are of 
practical legal significance. 

China's first opportunity to make an official state- 
ment of attitude with respect to the international 
legal validity of the Sino-Japanese treaties and notes 
of May, 1915, came on the very day Japan submitted 
the ultimatiun of May seventh. The Chinese Gov- 
ernment on that day published an official statement 
which was, in fact, a protest, characterizing the Jap- 



THE EXTENSION OP THE LEASE PERIOD 155 

anese action as " drastic " and conducted with 
" unusual procedure ", drawing attention to the fact 
that the Japanese demands were unprovoked and 
without a quid pro quo* There is, however, no sug- 
gestion therein of an intention to question the bind- 
ing validity of the agreements about to be concluded, 
and no statement of intention to abrogate them. Nat- 
urally, such a statement was precluded by the very 
nature of the demands and embarrassments which 
China would have had to suffer at the hands of the 
government demanding submission actually under 
threat of military force. 

At the Paris Peace Conference in 1919 the Chinese 
delegation submitted several memoranda having 
some relation to this question, the most of them relat- 
ing especially to Shantung. China's principal legal 
claim for recovery of Shantung was neither the non- 
assignability of the Kiaochow lease, nor the allega- 
tion that force majeure had attended the negotiations 
of 1915, but rather that the right to recover Shantung 
was based on China's declaration of war against Ger- 
many which was declared to have terminated the 
Sino-Q-erman lease convention with respect to Kiao- 
chow. 2 The latter contention has no bearing on the 

1 The Brno-Japanese Negotiations of 1915 (Japanese and Chinese 
Documents and Chinese Official Statement), pp. 64 iff. Carnegie En- 
dowment for International Peace, 1921. 

2 Quigley, H. 3. "Legal Phases of the Shantung Question", in 
Minnesota Law Review, April, 1922, pp. 380-382. Lansing, Robert 
The Peace Negotiations, p. 250; Dillon, E. J. The Peace Conference, 
p. 285. In reply to these memoranda the Japanese delegation offered 
several rejoinders, among them the following: "By concluding the 
agreement of September 24, 1918, China bound herself not to con- 



156 THE EXTENSION OF THE UBASE PEKEOD 

status of the Kwantung leased territory. The Chi- 
nese delegation, however, did incidentally suggest 
the right of abrogation of the 1915 agreements on 
the ground that they were imposed upon China with 
attendant force majeure: " The 1915 agreements 
were, however, concluded by China under coercion 
of a Japanese ultimatum threatening war ".*. What 
China did at the Paris Peace Conference, therefore, 
was to declare that coercion had attended those nego- 
tiations, that consequently China reserved the right 
to open the whole question of the validity of the 1915 
agreements at a subsequent date, but did not declare 
them to be either abrogated or non-enforceable for 
the time being. China also sought to invoke the 
principle of rebus sic stantibus, but was answered on 
this point by a Japanese memorandum. 

At the Washington Conference, however, the Chi- 
nese delegation gave additional reasons why the 1915 
agreements relative to South Manchuria, i. e., includ- 
ing the extension of the Kwantung lease, should be 
abrogated. The Chinese delegation did " raise the 
question as to the equity and justice of these agree- 
ments and therefore as to their fundamental valid- 
ity ".* Dr. C. T. Wang clearly took the position that 

test the validity of the Treaty of May 25, 1915, of which it is a 
sequel." (Gallagher, Patrick. America's Aims and Asia's Aspira- 
tions, p, 304.) 

Letter of the Chinese Delegation to the Peace Conference, May 4, 
1919, printed in Wood, G. Zay, The Shantung Question, pp. 124-125. 

4 Conference Proceedings, p. 332; Willoughby, W. W. Chma at the 
Conference, p. 255, Statement of Dr. C. T. Wang in the 31st meeting 
of the Committee on Far Eastern Affairs, Feb. 3, 1922. Sixth Plenary 
Session, Feb. 4. 



THE EXTENSION OF THE LEASE PERIOD 157 

the Chinese delegation was not " disposed to rely 
solely upon a claim to the technical validity of the 
agreements of 1915 ", but rather on expediency, in 
the interest of preserving peace in the Far East, and 
on moral grounds. 5 He, therefore, stated that the 
treaties and notes of May 25, 1915, " should form 
the subject of impartial examination with a view to 
their abrogation ". China, therefore, had not abro- 
gated those agreements. 

The Chinese delegation then advanced four rea- 
sons why China desired abrogation: 

1. " In exchange for the concessions demanded of 
China, Japan offered no quid pro quo. The benefits 
derived from the agreements were wholly uni- 
lateral/' 

2. " The agreements, in important respects, are 
in violation of treaties between China and the other 
power s." 

3. " The agreements are inconsistent with the 
principles relating to China which have been adopted 
by the confer ence." 

4. " The agreements have engendered constant 
misunderstanding between China and Japan, and, if 
not abrogated, will necessarily tend, in the future, 
to disturb friendly relations between the two coun- 
tries. . . . ." 6 

These declarations were made " in order that the 
Chinese Government may have upon record the view 

9 Conference Proceedings, p. 332. 
pp. 332, 1558, 1084. 



158 THE EXTENSION OP THE LEASE PEBIOD 

which it takes, and will continue to take, regarding 
the Sino-Japanese Treaties and Exchanges of Notes 
of May 25, 1915 ". The second, third and fourth 
reasons have little or no bearing on the juristic 
status of the Kwantung leased territory, except in 
so far as the reservation of right attached enables 
China to reopen the question of the extension of this 
lease. 

The status of leased territories in China received 
special attention at the Washington Conference and 
in that discussion the question of Kwantung was con- 
sidered along with the others. The economic, politi- 
cal and strategic importance of Kwantung to China 
was described in detail, but, when the Japanese dele- 
gation gave similar reasons for remaining in occupa- 
tion, the Chinese delegation did not take the position 
that the Japanese rights were only de facto and not 
de jure. The Chinese delegation, however, reserved 
the right to seek a solution of this general question 
" on all future occasions ". 7 The international legal 
status of Kwantung was not, therefore, directly af- 
fected by the Washington Conference, and only indi- 
rectly, in so far as the indefinite promises of other 
powers to return their leases may furnish precedents. 
.In the absence of the Sino-Japanese treaty and 
note of 1915, which extended the lease of Kwan- 
tung to the year 1997, the original lease of 1898 
would have run its twenty-five year period on March 
27, 1923. On March 10, therefore, the Chinese Gtov- 

* Conference Proceedings, pp. 1666-1560. 



THE EXTENSION OF THE LEASE PERIOD 159 

ernment addressed a note to the Japanese Govern- 
ment urging that the 1915 agreements, which had ex- 
tended the term of the lease, should be considered 
abrogated. The Japanese Government replied with 
a categorical refusal. 8 Since that time the Chinese 

9 Vide: Appendix A, for the full official texts of these notes of 
March. 10/14, 1923. It appears that the action of the Chinese Foreign 
Office in forwarding this note to the Japanese Government was largely 
influenced by the strong attitude of both houses of the Chinese Parlia- 
ment on the subject. On Nov. 1, 1922, the House of Representatives 
passed a resolution urging that the President of the Republic forward 
a note to Japan demanding the immediate cancellation of the treaty 
of 1915 and the restoration of Kwantung lease to China. Certain 
senators, apprehensive of the possible effect of such an action on 
relations with Japan, opposed the resolution, and, consequently it 
was temporarily pigeon-holed by the Senate. On Jan. 17, 1923, how- 
ever, the House of Representatives debated and adopted another 
similar resolution, which the Senate was constrained to adopt on 
Jan. 19. Under the then constitution of China, it was provided that 
the President, if opposed to any resolution or act of Parliament, must 
refer it back to that body with objections within ten days. Such 
resolutions or acts might then become binding upon the executive if 
passed over his veto by a two-thirds majority. Commenting on this 
situation which impelled the President to instruct the Foreign Office 
to despatch the note to Japan on March 10, the Japan Advertiser 
(American-owned and edited) for March 2, 1923, contained this state- 
ment: "The agitation for the eviction of Japan from Manchuria 
began in the reconstituted Parliament, which has risen to a new plane 
of influence in recent months, largely through the patronage of power- , 
ful military chieftains. Since both houses of the Parliament had passed 
the resolution declaring the 1915 treaty void, it is more than likely 
that the Cabinet transmitted the resolution to Japan merely to 
appease the legislature and without any other expectation than a 
firm denial from Tokyo ". 

For contemporary data on China's attempt to secure abrogation of 
the 1915 treaty and the return of the Kwantung lease the following 
references to the Japan Advertiser are pertinent: Nov. 17, 1922; 
Jan. 19, 21, 28; Feb. 28; Mar. 1, 2, 3, 7, 9, 15, 16, 20, 22; Apr. 2, 5, 1923. 
Also: The Peking Leader, Mar. 1, 1923; The Chinese Students' 
Monthly, March, 1923; the China Year Book, 1924, p. 864, 



160 THE EXTENSION OF THE LEASE PEEIOD 

Government have not assumed an official position 
that Japan no longer remained in legal possession of 
the Kwantung leased territory, the fact being illus- 
trated by the lack of any official reaffirmation of the 
Chinese attitude expressed in the note of March 10, 
1923, and by the de facto situation acquiesced in, in 
practice, by the Chinese Government. The Sino- Jap- 
anese postal agreement of 1922, for example, which 
contained clauses specifically recognizing Japanese 
possession of the leased territory, remained in com- 
plete operation for many years subsequent to 1923. 
There is special purpose in drawing attention here 
to contentions which have been made, from time to 
time, by individual writers to the effect, that, on 
various grounds, the Sino- Japanese treaty and notes 
of 1915 with respect to South Manchuria are void or 
voidable. There has been far too much confusion, 
even among foreign publicists, between such conten- 
tions and the official attitude of the Chinese Govern- 
ment. It may, then, be repeated that the Chinese 
delegation at the Washington Conference did not de- 
clare these agreements to be void, and did not assert 
that they were voidable by application of the doc- 
trine of rebus sic stantibus or of alleged duress at- 
tending the negotiations. These, and the grounds 
that they are void or voidable because of unconstitu- 
tional or illegal procedure in negotiation and ratifica- 
tion in China, of the non-alienability of the territory 
intrinsically and their inconsistency with the exis- 



THE EXTENSION OF THE LEASE PEEIOD 161 

tence of China as a sovereign state, are private 
contentions. 9 

The Japanese Government have, of course, acted 
on the assumption of the unquestioned validity of 
these agreements. The statements of the Japanese 
delegation at the "Washington Conference may be 
taken as the clearest expression of their official posi- 
tion in the matter. This position is a fair description 
of the views of Japanese publicists on the subject. 10 

9 For a compendium of such private contentions reference may 
be made to the following: China- Japanese Treaties of 1915. Pub- 
lished for the China National Defense League in Europe, etc. London, 
during the Paris Peace Conference. 

10 Of . Ichihashi, Y. The Washington Conference and After, pp. 261 ff ., 
pp. 288 ff. Dr. Ichihashi characterizes the so-called " Twenty-one De- 
mands " as " the most serious diplomatic blunder yet committed by 
Japan " (p. 302), but affirms the validity of the treaties and notes 
exchanged in May, 1915, thereafter. Cf . Dr. Suehiro's interpretation of 
the subject in The Japan Chromcte, Feb. 1, 1923, pp. 134, 143. For 
editorial opinions of Japanese newspapers on the point the following 
notices are of interest: Japan Advertiser Jan. 23, 1923; Jan. 24, 1923; 
and the editorial comment of the Japan Advertiser, Mar. 2, 1923: 
" The unanimity of Japanese opinion with respect to the Kwantung 
Leased Territory and the South Manchuria Railway is the most 
significant feature of the situation raised by China's demand for the 
abrogation of the Treaty of 1915 Japanese sentiment regard- 
ing Kwantung and the railway, which constitute the backbone of the 
Japanese position in Manchuria, has achieved an intense union of all 
shades of political belief such as we do not remember since the 
declaration of war against .Germany. The most liberal newspapers 
which favored the retrocession of Shantung and fought valiantly 
against the continued occupation of Siberia, are almost as strong in 
their denunciations of the Chinese demands as the most jingoistic." 
The so-called "Twenty-one Demands" themselves, particularly the 
submission of the ultimatum to China during their presentation, had, 
at the time, vehement opponents in Japan, and particularly in the 
Terauchi ministry and the Diet session of 1916, but, these demands 
having been in part written into, treaties, Japanese publicists and the 
public generally are not inclined to question their legal validity. 



162 THE EXTENSION OP THE LEASE PEEIOD 

At the conference the Japanese delegation declared 
that Japan " cannot bring itself to the conclusion 
that any useful purpose will be served by research 
and re-examination at this Conference of old griev- 
ances which one of the nations represented here may 
have against another 'V 1 The so-called " Twenty- 
one Demands ", said Mr. Hanihara, was a question 
" to be taken up between Japan and China, if it- were 
to be taken up at all, and not at this Conference "." 
In the thirteenth meeting of the Committee on 
Far Eastern Questions, February 2, 1922, the Jap- 
anese delegation reasserted the binding validity of 
the treaties, declared that China's request for can- 
cellation was tantamount in itself to a recognition 
of the binding force of the same, and declared that 
an " exceedingly dangerous precedent will be estab- 
lished, with far-reaching consequences upon the sta- 
bility of the existing international relations in Asia, 
in Europe, and everywhere " if it were to be allowed 
that " rights solemnly granted by treaty may be re- 
voked at any time on the ground that they were con- 
ceded against the spontaneous will of the grantor ' '." 

11 Conference Proceedings, pp. 1508-1510. 

i2/&t&, p. 1160. 

18 /bid, pp. 1508-1510. To this statement the Chinese delegation 
replied that " a still more dangerous precedent will be established with 
consequences upon the stability of international relations which 
cannot be estimated, if, without rebuke or protest from other Powers, 
one nation can obtain from a friendly, but in a military sense, weaker 
neighbor, and under circumstances such as attended the negotiation 
and signing of the Treaties of 1915, valuable concessions which were 
not in satisfaction of pending controversies and for which no qu&d 
pro quo was offered ". (/bid., pp. 1556, 1160.) 



THE EXTENSION OP THE LEASE PEEIOD 163. 

Japan also asserted that the conference dearly 
recognized concessions " made by China ex con- 
tractu, in the exercise of her own sovereign rights ' ', 
as not inconsistent with the principles adopted by 
that conference. The Washington Conference, there- 
fore, took no official action as to the validity of the 
Sino-Japanese treaty and notes of 1915 with respect 
to South Manchuria and the extension of the lease 
of Kwantung to 1997. 

Prefatory to a consideration of the validity of the 
Sino-Japanese treaty and notes of 1915 which ex- 
tended the Kwantung lease to a full period of ninety- 
nine years, two facts should be clearly kept in mind: 
the Chinese Government have not officially either 
declared them invalid and of no force intrinsically, 
or abrogated them either by declaration or specific 
action in evidence of abrogation; and, secondly, no 
third state has ever officially contested the validity 
and enforceability of those agreements. What the 
Chinese Government have done is to state specific 
grounds on which China contends that they are void- 
able. From a strictly juristic point of view, China *s 
request for their abrogation at the Washington Con- 
ference may be taken as tantamount to an acceptance 
of their existence in fact. The Chinese delegation, 
however, reserved the right to " seek a solution " of 
the general " question " on all future appropriate 
occasions "." The attitude of third states, including 
Great Britain and the United States, so far as ex- 

i* Conference Proceedings, pp. 1666-1560. 
13 



164 THE EXTENSION" OP THE LEASE PEBIOD 

hibited by their actions with respect to the Kwantung 
leased territory, actually is one of recognition of the 
validity and binding force of those agreements of 
1915. 15 The de facto situation, which is declaratory 
of their official attitude, is described by the fact that 
the British and American consuls at Dairen in the 
leased territory receive their exequaturs from the 
Japanese Government. 16 

In view of the various opinions which have been 
expressed by writers concerning the validity of the 
Sino-Japanese treaties and notes of 1915, particu- 
larly as they effected an extension of the Kwantung 
lease to ninety-nine years, clarity will be served by 
distinguishing between two distinct questions : Are 
these agreements ipso facto void, nugatory and in- 
trinsically unenforceable? Are they voidable or, 
from the point of view of international law, of such 

15 During the negotiations of 1915 the United States addressed a 
note of March 13 to the Japanese Ambassador at Washington which, 
while raising several questions with regard to the character of the 
proposals submitted by Japan, nevertheless contain no official pro- 
tests against the provisions for the extension of the Kwantung lease 
or the period for Japanese possession of the South Manchuria 
Bailway. (U. S. For. Rels., 1915, pp. 105-111.) Again, on May 13, 
Secretary Bryan addressed a note to the Japanese Foreign Office in 
which he reserved American rights under their China treaties, but 
expressed no definite objections to the portions relating to the ex- 
tension of the Kwantung lease. (Ibid., p. 146.) The British Govern* 
merit, similarly, raised no objections to the extension of the Kwantung 
lease, or questioned the intrinsic validity of the transactions securing 
it, (Parl Debates, March 12, 1915, Vol. 71, p! 1657.) 

18 Cf. U. S. v. A. W. Smith, 1925. In this case before the U. S. 
Court for China, Shanghai, Judge Furdy accepted the validity of 
the 1915 treaty and notes. 



THE EXTENSION OF THE LEASE PERIOD 165 

a character as would justify unilateral abrogation 
by the Chinese Government? 

That the Sino-Japanese treaty and notes of 1915 
pertaining to South Manchuria and Inner Mongolia 
are void is denied by the declarations and practice 
of the Chinese Government. That government has 
never declared them void and non-enforceable, and 
as a result those agreements have been regarded 
officially both by China and Japan as valid conven- 
tions, in pursuance of which they have subsequently 
entered into mutual agreements predicated on the 
existence of the 1915 agreements. The Chinese dele- 
gation at the Washington Conference did not declare 
them void, but presented reasons why they might 
be considered voidable, and by so doing, that is, 
by requesting abrogation of them, admitted that for 
the time being, they were still valid agreements. The 
Japanese delegation called attention to this position 
of China by stating that a request for cancellation 
was tantamount to an admission of their existence 
inlaw. 1T 

As to the practice of the Chinese Government 
which may be taken as descriptive of their official 
attitude toward the 1915 agreements relative to Man- 
churia, it is evident that inasmuch as the provisions 
extending the Kwantung lease term were but a part 
of the several Manchurian agreements negotiated 
simultaneously, and, in fact, in the same document 
in some cases, the acceptance in practice of these 

Conference Proceedings, pp. 1666-1560. 



166 THE EXTENSION OF THE LEASE PERIOD 

other commitments serves to establish the entire 
Manchnrian group, including the provision extend- 
ing the Kwantung lease, as binding and enforceable. 
Moreover, in pursuance of those agreements the Chi- 
nese Government have subsequently entered into at 
least one Manchurian agreement with Japan which 
was predicated on the assumption of the existence of 
the 1915 agreements. This was the loan agreement 
for the Kirin-Changchun railway, signed October 
12, 1917, 18 Among the various commitments in the 
1915 agreements pertaining to Manchuria which have 
in practice been considered binding by the Chinese 
Government are the provisions whereby the Japa- 
nese Government were permitted to designate cer- 
tain cities in Inner Mongolia to be opened by China 
to foreign trade and residence, and the provisions 
granting Japanese nationals the right to prospect 
and work certain coal and iron mines in designated 
regions in Fengtien and Kirin provinces. It is not 
necessary, therefore, to raise the question of their 
more general acceptance by the de facto Mukden 
Government of Manchuria during 1925-26, for ex- 
ample, to illustrate how, from a purely juristic point 
of view, the Sino- Japanese treaty and notes pertain- 
ing to South Manchuria and Inner Mongolia have 
been accepted in practice by the Chinese Government 
as valid and enforceable. 

The Chinese Government, in spite of temporary 
acceptance of the 1915 agreements as valid and en- 

* MacMurray, Vol. H, p. 1390. 



THE EXTENSION- OF THE LEASE PEBIOD 167 

f orceable, have, however, taken such official action as 
would enable that government to open the entire 
question when an opportune time presented itself. 
Their declarations at the Washington Conference 
and their communication to the Japanese Govern- 
ment of March 10, 1923, requesting abrogation of the 
provisions of the 1915 agreements extending the 
Kwantung lease to 1997, are evidences. 

On what grounds, then, might the Sino-Japanese 
treaties and notes of 1915 pertaining to South Man- 
churia and Inner Mongolia be claimed voidable by 
the Chinese Government? By alleging procedure in 
their negotiation to have been improper and not in 
conformity with the established practice of China for 
negotiating treaties? By claiming that attending 
duress, coercion or force majeure was of such a 
nature as to invalidate the agreements ? By asserting 
that no quid pro quo was offered by Japan? By de- 
claring that the agreements intrinsically were in 
violation of China 's treaties with other states? By 
submitting that the agreements were inconsistent 
with the Nine-Power Treaty of the Washington Con- 
ference concerning principles and policies to be fol- 
lowed with respect to China? By representing them 
as conferring rights inherently inalienable? By 
assuming, finally, that by invoking the principle 
of rebus sic stantibus, on the ground that funda- 
mental conditions had changed since 1915, the Chi- 
nese Government could unilaterally declare them 
abrogated? 



168 THE EXTENSION OF THE LEASE PEKIOD 

International law should conform as closely as 
possible to abstract principles of " equity and jus- 
tice, " but that the unilateral allegation of moral 
wrong and of resulting injustice ipso facto are suffi- 
cient, from a juristic point of view, to invalidate an 
international contract once signed by two states, is 
an assertion which has not yet found universal accep- 
tance either among the publicists or in practice. The 
determination of alleged injustice is not within the 
legal province alone of the state against whom the 
injustice is alleged. 

Moreover, international law is still so indefinite on 
many of the points raised here, so suffused with what 
amounts to doctrines or rationalizations which seek 
to make " legal " much of what a state can do with 
actual impunity, so inebriate when confronted with 
the superior strength of state action, so pliable when 
urged to transform a de facto position into a de jure 
one, so apparently accommodating in its service to 
those who seek to use its precepts to prove a na- 
tionalistic case, that one hesitates to resort to some 
of its assumed doctrines for fear of being accused of 
attempting to create international law where none 
exists* And yet, without presuming to be exhaustive 
in the effort, there would seem to be practical pur- 
pose in an attempt to summarize briefly the prin- 
ciples of international law which are presumably ap- 
plicable to the question of the voidability of the Sino- 
Japanese treaties and notes of May 25, 1915. 



THE EXTENSION OP THE I^EASE PEBIOD 169 

It has been contended by various writers, though 
apparently not by the Chinese Government, that the 
Sino-Japanese treaties and notes of 1915 are in- 
valid or voidable because the Chinese plenipoten- 
tiaries, that is, President Yuan Shih-k'ai particu- 
larly, exceeded his constitutional authority and that 
these agreements not only did not receive ratification 
from the Chinese Parliament, but were later defi- 
nitely repudiated by a subsequent act of Parlia- 
ment. 19 Similarly, it has been argued that because a 
Chinese Parliament later specifically repudiated the 
agreements " this action automatically cancels the 
consent given by China's representatives in 1915 ", 20 
Oppenheim has been cited to the effect that " such 
treaties, concluded by Heads of States, or represen- 
tatives authorised by these Heads, as violate con- 
stitutional restrictions, are not real treaties, and do 
not bind the State concerned, because its represen- 
tatives have exceeded their power in concluding the 
treaties ". 21 This principle is one of practically uni- 
versal acceptance. 

A reasonable interpretation of this generally ac- 
cepted principle, however, would require careful at- 
tention to the realities of the particular circum- 
stances attending the negotiations in question. The 
official practice of China as a state differed at that 

i Chino-Japatnese Treaties of 1915, p. 19; Mfflard, T. F. F., Testi- 
mony before Senate For. Rels. Committee, U. S. Senate Documents, 
Vol. 10, 1919, 65th Cong., 1st Sess., p. 446. 

20 Clark, Grover, Peking Leader, editorial, March 1, 1923. 

21 Oppenheim, L. Interria&ianal Law, Vol. I, p. 709 (4th ed. 1928.) 



170 THE BXTE^SIOST OP THE LEASE PEBIOD 

time very widely from the letter of the so-called con- 
stitution ; so widely, in fact, that the practical dicta- 
tor, Yuan Shih-k'ai, supported by an illegally con- 
stituted rtunp " legislature ", had " amended out of 
existence " the so-called " constitution " which pre- 
sumably would otherwise have been applicable, 22 
The Parliament, which had actually been abolished in 
January, 1914, by Yuan Shih-k'ai, had been itself a 
parlous picture of a constitutional reality, and, as the 
eminent Chinese scholar, Liang Ch'i-ch'ao, described 
it, a body incompetent to organize itself, irregular, 
and concerned more with petty wrangling than with 
the momentous international questions which con- 
fronted China. 28 During March to May, when these 
agreements with Japan were being negotiated there 
was, in fact, no parliament in China properly so 
called. " President ' ' Yuan Shih-k'ai was practically 
a dictator, whose monarchical aspirations were sup- 
ported by a strong faction of politicians in actual 
possession of authority. " President " Yuan signed 
those agreements as the only Chinese commanding 
authority in and for China from the point of view of 
competence to deal with foreign states. Moreover, 
the treaties of 1915 with Japan were not isolated 
cases, for several treaties with foreign states were 
negotiated during this period and after, which were 

22 Vinacke, Harold M. Modern Constitutional Development in 
China, p. 174. Cf. Ban, M. J. Modem Democracy in China, pp. 97-98; 
Hornbeek, S. JL Contemporary Politics in the Far Ea&t, pp. 49-50. 

** Vinadce, op. c# v p. 176. 



THE EXTENSION OF THE LEASE PERIOD 171 

never ratified by any Chinese parliament. 24 These, 
without exception, have been considered binding by 
the Chinese Government. These circumstances serve 
to illustrate how impossible it is to presume the un- 
qualified application of certain rules of international 
practice which, though legitimately applicable in a 
constitutionally organized and politically ordered 
state, presuppose conditions which did not exist in 
this case. 25 

a* For an illuminating description of the actual political situation 
in Peking during the years 1915 and 1916, see Paul S. Reinseh, An 
American Diplomat in China* Chs. XI to XVI inclusive. The organic 
law of China for this period was the Constitutional Compact, the 
amended Provisional Constitution, which had been promulgated on 
May 1, 1914, and remained, at least technically, in force until well 
after 1915. (Bau, op. cit., p. 403.) 

26 A distinction should also be drawn between the international 
binding validity of an agreement and its status in the constitutional 
law of a particular government, party to such an agreement. Professor 
W. W. Willoughby, writing to this point, has stated the principle, 
generally recognized among states, that "it is recognized that the 
constitutional difficulty of the State is one that is self-created and 
may not be set up as an excuse for not carrying out the conventional 
or other obligations which its government has assumed or which are 
laid upon it by International Law ". (Fundamental Concepts of 
Public Law, p. 313.) " .... In any given case, one State is entitled 
to rely upon the assertion of the executive head of a State or of his 
plenipotentiary agent, that he is qualified to negotiate a treaty which 
will be immediately binding without ad referendum proceedings. The 
assertion thus made might be without constitutional warrant, but the 
State would none the less be internationally bound, for it could not 
be held that the other contracting State would be qualified or 
obligated to determine the question, which might be a very technical 
one, of the proper interpretation and application of the provisions of 
the other State's constitutional laws." (Ibid., pp. 313-314.) 

With particular reference to the situation in China, Dr. Willoughby 
has recently written the following: "As a matter of fact, within 
recent years the Executive of China has entered into loan agreements 



172 THE EXTEHSIOE" OP THE LEASE PEBIOD 

The circumstances of political disorder and of dis- 
crepancy between letter constitutions and the actual 
practice of state affairs apply similarly to the con- 
tention that because Parliament subsequently spe- 
cifically singled out these 1915 agreements for de- 
nunciation they are, therefore, invalid. It is not 
clear, on the other hand, if strictly legalistic criteria 
be considered, that Parliament had any authority to 
denounce a treaty and by so doing makes it mvalid 
as far as China's legal obligations arising therefrom 
are concerned The Chinese Foreign Office, the offi- 
cial organ charged with the conduct of foreign rela- 
tions, has exhibited in practice that those treaties are 
not to be considered void. The Chinese Government, 
therefore, has not considered itself bound by the act 
of the subsequent parliament in this matter. On the 

with foreign bankers without securing the assent of Parliament, 
although the Chinese Constitution has expressly declared that all such 
loans, in order to be legally binding, must be assented to by the legis- 
lature. It is certain, however, that, should China later attempt to 
deny its obligations under the loan agreements thus entered into, it 
would be held that it was internationally estopped from so doing by 
reason of the fact that the other contracting parties assumed, and 
were justified in assuming, that the organ of government which China 
held out as qualified to conduct the negotiations, had the authority 
which it claimed to have, namely, to act in behalf of, and to bind 
the Chinese State." (Ibid^ pp. 314-315.) Dr. Willoughby then lays 
down the following rule of interpretation of such agreements: " The 
proposition, then, comes to this: Peculiarities of constitutional struc- 
ture of one State are without international significance to other States. 
Each State, as a member of the international society of States, has an 
organ of government through which it communicates with and enters 
into contractual and other relations with other States. Whatever 
undertakings are entered into by such organs are internationally 
binding upon the States which they represent." (Ibid., p. 315.) 



THE EXTENSION OF THE LEASE PEBIOD 173 

ground of improper procedure during the negotia- 
tion of the 1915 agreements, therefore, or by virtue of 
the subsequent expression of opinion of the Chinese 
Parliament, it does not appear that these agreements 
can legitimately be considered voidable. 

Duress, coercion or force majeure has likewise 
been alleged as sufficient grounds for declaring the 
1915 agreements void db initio or voidable. That the 
Sino- Japanese treaties and notes of 1915 were forced 
on China there can be no doubt. Whether the ulti- 
matum of May 7, however, was delivered by Minister 
Hioki without some form of solicitation from Presi- 
dent Yuan Shih-k'ai himself is a question on which 
there is no unanimity of opinion, even among those 
more or less intimate with the negotiations. 26 Minis- 
ter Reinsch is authority for the statement that " the 
paper on which the demands were written was water- 

26 The late Minister Reinsch admitted that Yuan Shih-k'ai " may 
have sought a certain qidd pro quo in the form of Japanese support 
for his personal ambitions ", and that if this be true, " Yuan himself 
in his inmost thought preferred that he should be forced to accept 
these demands through an ultimatum 7 '. Dr. Reinsch, however, con- 
sidered "utterly fanciful" the assertion that it was Yuan himself 
who " originally conceived the idea of the twenty-one demands, in 
order that he might secure Japanese support for his subsequent policies 
and ambitions". (An American Diplomat in China, pp. 146-147.) 
Dr. Y. Ichihashi is, likewise, non-committal on this point, simply 
stating that " it is intimated in Japan that Yuan himself had suggested 
to Japan that she ignore the customary .diplomatic practice and pre- 
sent her demands directly to him". He concludes: "At any rate, 
when the Yuan-Japanese relationship is understood, the extraordinary 
diplomatic method employed by Japan does not seem so unusual 
after all". (The Waskinffton Conference and After, p. 303.) (The 
Manchuria Dotty News, May 3, 1915; Yang, op. cit., p. 173.) 



174 THE EXTENSION" OP THE LEASE PEEIOD 

marked with dreadnoughts and machine guns ". 2T In 
view of the fact that a very large part of those de- 
mands had actually been accepted before the ulti- 
matum was delivered, a certain presumption arises 
that the ultimatum was, from the Japanese point of 
view, unnecessary to secure compliance with addi- 
tional concessions sought Yuan's possible desires 
and the obvious fact that the Okuma Government 
actually sought to disseminate the impression in 
Japan that there was a grave diplomatic crisis in 
China strengthens the view that there may have been 
a rather definite meeting of minds as to the utility of 
such an ultimatum. 28 It is, therefore, somewhat 
doubtful if the imposition of the ultimatum of May 
7 is, considered realistically, evidence of entirely 
unmitigated force majeure. On the other hand, it is 
an established fact that at an early stage in these 
negotiations several thousand Japanese troops were 
moved to Dairen and Tsingtao, ostensibly for re- 
placement, but actually to increase the garrisons at 
those places. This replacement took place before the 
usual time and the old garrisons, ostensibly to be 
relieved, remained at their posts throughout the 
negotiations until after the delivery of the ultimatum 
of May 7. 19 As to the circumstances attending these 

27 Reinsch, op. rit., p. 131. 

28 For an illuminating discussion of this phase of the subject see 
the Japan Ckromole, June 9, 1821, an editorial on the courageous 
views of Mr. Zumoto, veteran editor of the Herald of Asia. The 
Japan Advertiser, April 5, 1923. 

"Reinsch, op. c*X pp. 138, 143. " .... Knowing, as Japan does, 
China's innate weakness Japan has sought to have all her preferential 



THE EXTENSION OF THE LEASE PEBIOD 175 

negotiations, then, it is evident that, while the agree- 
ments were actually forced on China with a concur- 
rent threat of force or reprisals, the enormity of the 
offense from a moral point of view may have to be 
considerably minimized when once the true role of 
Yuan Shih-k'ai is fully revealed. 

The existence of a threat of force, even of a move- 
ment of troops ostensibly to induce a state to con- 
clude negotiations for a treaty, is not, from a juristic 
point of view, sufficient to invalidate the agreement 
thus negotiated. Physical coercion or intimidation 
of the negotiators themselves on the other hand, may 
be sufficient cause to invalidate an international 
agreement thus negotiated. It is surprising that 
publicists continue to use the terms " duress ", 
" coercion " and " force majeure " to apply to both 
these situations, especially since there is practical 
unanimity as to their distinct character. Treaties 
are, in a sense, contracts between states, and are 

claims in China officially recognized by China before the witness of 
the world so as to safeguard her own interests securely first, and then 
to place China in a position beyond danger of being seduced by 
Germany and Austria to cede part of her territory, which contingency, 
if it were ever to come to pass, would destroy the whole object of the 
Siege War about Eoaochow." (Japanese editorial view: Manchuria 
Daily News, April 21, 1915.) "Japan has already augmented her 
military forces in China. Years ago, when President Roosevelt des- 
patched the Atlantic Fleet to Japanese waters, Japan laughed in her 
sleeve at the rusty condition of the guns mounted on the American 
warships. Whatever attitude the United States might assume in con- 
nection with the ^no-Japanese negotiations, it is certain it would have 
no effect at all on Japan's attitude in regard to China." (Manchuria 
Daily New, April 7, 1916.) 



176 THE EXTENSION OP THE LEASE PERIOD 

binding only when negotiated with complete free- 
dom of consent and action on the part of the actual 
negotiators. " The necessity of ' freedom of action ' 
applies only to the representatives * of the contract- 
ing States ". 80 To quote Professor Oppenheim far- 
ther: " It is their * freedom of action in consenting 
to a treaty which must not have been interfered 
with." The practical unanimity of authoritative 
writers in international law on this point makes it 
necessary to cite only a few of them. 

John Bassett Moore asserts that " coercion, while 
invalidating a contract produced by it, does not in- 
validate a treaty so produced ". 81 Oppenheim is 
equally definite : " As a treaty will lack binding force 
without real consent, absolute freedom of action on 
the part of the contracting parties is required. (It 
must however, be understood that circumstances of 
urgent distress, such as either defeat in war or the 
menace of a strong State to a weak State, are, accord- 
ing to the rules of International Law, not regarded 
as excluding the freedom of action of a party con- 
senting to the terms of a treaty.) . . . .But a State 
which was forced by circumstances to conclude a 
treaty containing humiliating terms has no right 
afterwards to shake off the obligations of such treaty 
on the ground that its freedom of action was inter- 
fered with at the time ".* 2 Lawrence says of such 

80 Oppenheim, L. International Law ,Vol. I, p. 711. (4th ecL 1928.) 
* Italics in the original. 

81 Moore, John Bassett, Digest of International Law, Vol. V, p. 183. 
* Oppenheim, L. Vol. I, p. 711. <4th ed. 1928.) 



THE EXTENSION OF THE LEASE PERIOD 177 

treaties: " That they were extorted by force is no 
good plea for declining to be bound by them ", 88 
Similar views are given by John Westlake and 
George Graf ton Wilson. 84 This practically unani- 
mous view of publicists is as old as Vattel, who wrote 
with reference especially to treaties of peace follow- 
ing war : " On ne pent se degager d'un traite de paix 
en allSguant qu'il ete extorque par la crainte ou 
arrache de force ", 85 

The practically unanimous statements of inter- 
national law on this point, as interpreted by the 
publicists, to quote Professor Harold Scott Quigley, 
who has written authoritatively of the legal status 
of these treaties and agreement of May, 1915, " is 
sufficient warrant for rejecting the argument from 
force majeure on legal, however strong it may be on 
moral grounds ". 86 After an exhaustive treatment 
of this subject, Dr. Quigley concludes that the argu- 
ment " which rests the incompetency of the Sino- 
Japanese treaty of 1915 upon Japan's use of force 
majeure appears to be without adequate basis in in- 
ternational law ". 

Were it not for the presumed reluctance of the Chi- 
nese people to consider force as a necessary attri- 
bute of political life it would seem surprising that 

M Lawrence, T. J. The Principles of International Law, p. 287. (3rd. 
ed. rev.) 

* Westlake, Vol. I, p. 281; Wilson, G. G. and Tucker, G. F. Inter- 
national Law, p. 213. (7th. ed.) 

" Vattel, Droit des Gens, Vol. IV, Ch. 4, Sec. 37. 

86 Quigley, H. S. "Legal Phases of the Shantung Question", in 
Minnesota Law Review, April, 1922, pp. 381-382. 



178 THE EXTENSION OF THE LEASE PERIOD 

their writers should so unanimously assert that 
duress attending the 1915 negotiations invalidate 
those agreements. " Force " may be intrinsically 
not so different from force of circumstances which, 
in turn, may counsel states to accept new condi- 
tions. 87 

Finally, in an effort to characterize the Sino- Japa- 
nese treaties and notes of 1915 as intrinsically un- 
enforceable, or as of a character to justify their 
unilateral abrogation by China when an opportune 
time arose, it has been contended that these treaties 
are invalid per se because they impair the indepen- 
dence and sovereignty of China, and because they 
seek to alienate territory which is inalienable, due 
to their strategic importance to China. Oppenheim 
has been cited to the effect: " If the existence or 
necessary development of a state stands in unavoid- 
able conflict with such state's treaty obligation, the 
latter must give way ". Hall, likewise, has been 
cited: " An implied condition of the continuance of 
the obligatory force of a treaty is, that if originally 
consistent with the primary right of self-preserva- 
tion, it remains so ". The conclusion is drawn that: 
" Therefore, a treaty becomes voidable as soon as 
it is dangerous to the life of or incompatible with the 
independence of the state ".** Dr. Hsia contends 

87 This resort to "force of drcumstances " to seek a solution of 
outstanding international questions was the means by which the 
Chinese Government of Nanking in 1930-31 sought to abrogate uni- 
laterally the treaties with foreign states which had given them 
extraterritorial rights in China. 

58 CMno-Japane&e Treaties of 1915> pp. 19-20. 



THE EXTENSION OP THE LEASE PEBIOD 179 

that " the inalienability of certain parts of a state's 
territory is a legitimate corollary of the principle of 
self-preservation ". 89 

Does international law recognize that an inde- 
pendent state cannot alienate its own territory by 
means of a treaty? Dr. Hsia, in another place, gives 
a defensible reply to this question when he asserts 
that " no serious students of international law have 
so far raised any doubt as to the legality of alienat- 
ing certain parts of a state-territory or acquiring 
them from another ". 40 The fact is that any sov- 
ereign state can be constrained to alienate almost 
any portion of its territory, leaving but the mere 
vestige of a sovereign state. Dr. W. W. Willoughby, 
whose respect for the sovereign rights of states is 
well known, asserts that any sovereign state can be 
legally bound only by its own will, but when that will 
has been exercised, as through a treaty with a for- 
eign state, " the State may go to any extent in the 
delegation of the exercise of its powers to other 
public bodies, or even to other States ; so that, in fact, 

88 HOT?., Ching-lin. Studies in Chinese Diplomacy, pp. 118-119. 

* Ibidem, pp. 117-118. There is a suggestion here of an analogy 
with the doctrine of territorial inviolability proposed at various times 
in France, especially by M. Thiers in 1871, when he sought to obtain 
aid from neutral nations to prevent the cession of Alsace-Lorraine to 
Germany. Commenting on this doctrine, Professor W. W. Willoughby 
dispenses with it tersely by the following: * This theory of territorial 
inviolability is so obviously artificial in character that it does not de- 
serve criticism. It is upon a par with the theory of * Legitimacy ' 
that played a part in the deliberations of the Congress of Vienna ". 
(The Ethical Basis of Political Authority, p. 349.) 
14 



180 THE EXTENSION OF THE UBASE PERIOD 

it may retain under its own direction only the most 
meagre complement of activities, and yet not impair 
its Sovereignty "/ x 

It has been held that the right of self-preservation 
is to a state a right which may be sufficient, in certain 
cases, to justify even the unilateral abrogation of 
treaties made with full consent on both sides. 42 But 
this right of a state to safeguard its own existence 
should not be used as an excuse to pursue national 
policies not otherwise defensible in international law, 
nor to denounce treaties which do not, in fact, preju- 
dice the existence of the state as such. It is, there- 
fore, difficult in the extreme to concede that " the 
leased territories in China are among the inalienable 
territories of China ", any more so than such terri- 
tories as, since 1860, have been ceded in freehold to 
Russia, Great Britain, France and Japan, including 
the Maritime Province of Siberia, Hong Kong, upper 
Burmah, part of Indo-China and the island of For- 

tt Willoughby, W. W. An Examination oj the Nature of the State. 
p. 196. (1911 ed.) 

42 There is, of course, no unanimity as to the definition and the 
superiority of this "right of self-preservation" among international 
jurists. Wolff, to whom the law of nations is much indebted for this 
doctrine, is criticized by Westlake, who also takes issue with Bonfils 
and Bivier, advocates of the superiority of the right of self-preserva- 
tion over all other rights and obligations of states. Self-preservation, 
says Westlake, " is merely that of self-defence ". A state can dis- 
member itself by a treaty with another, but it also has the right 
to take steps in self-defence to protect itself against imminent danger 
of attack. Nor is the manner of exercise of the right of self-defence 
unqualified". (Westlake, op. cit^ Vol. I, pp. 293-300.) Note the rela- 
tion of this same principle to the Japanese doctrine of " The Right 
to Live". (Cf. Young, Japan's Special Position in Manchuria, Ch. 

vn.) 



THE EXTENSION OF THE LEASE PEEIOD 181 

mosa. The Kwantung leased territory is, no doubt, 
of great strategic and military importance to China, 
both because of its proximity to Peiping and because 
it commands the sea approach to Manchuria on the 
south. But, in a very real sense, this leased territory 
is no more prejudicial to the independence of China 
as a state than is the existence of Eussian jurisdic- 
tion adjoining all the northern and northeastern 
frontiers of Manchuria. China today is far less in 
danger of partition or of destruction, or even of los- 
ing outlying territories, especially to Japan, than it 
was in 1895, 1898 or 1905. Moreover, it should be re- 
membered that these leased territories in China, in- 
cluding the Kwantung leased territory, are not per- 
manent alienations of Chinese territory, but only 
long-term leases, with jurisdictional rights trans- 
ferred for the period of the lease. A conclusion de- 
rivable from these circumstances, one in entire ac- 
cord with the realities which exist in the practice of 
the Chinese Government as to these leased terri- 
tories, and as to the Kwantung leased territory in 
particular, is that, while these leased territories are 
illustrations of transfers of jurisdictional authority 
which politically continue to be undesirable from the 
Chinese point of view, they are, nevertheless trans- 
fers which nothing in international law either pro- 
hibits or discountenances. 

* * # # 

Perhaps it is superfluous to add though this final 
caveat is so important that there is a danger that the 



182 THE EXTENSION OF THE LEASE PBEIOD 

author's point of view may otherwise be miscon- 
strued that throughout the discussion and interpre- 
tation of Japan's legal position in the Kwantung 
leased territory, caution has been taken not to sub- 
stitute moral for legal criteria* To seek to defend 
any particular national case with regard to this sub- 
ject has been entirely alien to. the writer's purpose. 
International law does not always conform to inter- 
national morality, or even, in given cases, to inter- 
national justice. The case of the so-called " Twenty- 
one Demands " is in point, and it is by no means an 
isolated one in international relations : recall the par- 
tition of Africa and the war-guilt sections of the 
treaty of Versailles. International law cannot be 
more moral than international custom. Force plays 
a leading role, in fact, in international affairs, and 
will continue to play its lawless part so long as the 
doctrine that a state knows no law above that which 
is of its own creation survives. The Sino-Japanese 
treaty and notes of 1915 are an illustration of this 
fact, than which there is none more illuminating. 

The fact of attendant force majeure in these nego- 
tiations, as will be developed in the next section, may 
well be emphasized by the Chinese Government as a 
just cause for urging a reconsideration of the treaty 
itself. So also the claim that in those negotiations 
China received no quid pro quo. Against the Chinese 
claim the Japanese have law on their side, but, be- 
yond that, the moral justice of the Japanese case is 
no more evident than that asserted by a certain 



THE EXTENSION" OP 'i* H ^ TJBABB PBEIOD 183 

Athenian ambassador in the Peloponnesian war, 
countering the stigmatic censure of the Spartan 
magistrates who urged that that which was right in 
war was right in peace. This sophist view of the 
Athenian ambassador hardly unsophisticated even 
today is Japan's sole moral defense for the submis- 
sion of the so-called " Twenty-one Demands " in 
1915:" 

" An empire "was offered to us. Can yon wonder that, acting 
as human nature always will, we accepted it and refused to 
give it up again, constrained by three all-powerful motives 
ambition, fear, interest? We are not the first who have as- 
pired to rule; the world has ever held that the weaker must 
be kept down by the stronger. And we think that we are 
worthy of power, and there was a time when you thought so 
too; but now, when you mean expediency, you talk about 
justice. Did justice ever deter anyone from taking by force 
whatever he could ? * 

Thucydides, I, 76. 



OHAPTEE IX 

CHINA'S EIGHT TO RBCOVBB THE LEASE 

China's right to recover the Kwantung leased ter- 
ritory at the expiration of the present fease period 
in 1997, is explicit in the terms of the Sino- Japanese 
treaty and notes of 1915 with respect to Sonth Man- 
churia and Eastern Timer Mongolia. The documents 
contain no provision for further extension. But the 
Chinese Government may well feel that the eve of 
the twenty-first century is a long way off ! The ques- 
tion then arises, especially in view of the return of 
Kiaochow to China in 1923 and the retrocession of 
Weihaiwei in 1930, whether legal means are available 
for China to recover the Kwantung lease before the 
expired term. China's internal political life is today 
in a state of great flux, but there are evidences of 
definite progress toward political stability which 
make prediction of even the near future hazardous. 
May it not be possible that, even within the next 
decade, Japan and China will have been constrained 
to pursue policies, based on necessary compromise, 
which would tend to alter Japan's position in the 
leased territory ? * 

!In 1908 Professor K. Asakawa of Yale University wrote: "The 
conviction of the majority of Japanese statesmen concerning the 
future of Kwantung is difficult to ascertain, [but] there is a strong 
opinion, even among military and naval circles, that, at the end of the 
stipulated period of twenty-five years or in 1923, satisfactory arrange- 
ment should be made for a secure restoration of the territory into 

184 



CHOTA'S BIGHT TO EECOVEB THE LEASE 185 

At first sight it may seem that but one avenue is 
open to China by means of which the leased territory 
can be recovered: unilateral action in denunciation 
of the Sino-Japanese treaty and notes of 1915, with 
or without a plea that a change of circumstances has 
so altered the situation evident when the treaty was 
signed that it is no longer possible, or conducive to 
maintenance of China 's position and prestige as a 
state, to continue to recognize it. There are, however, 
other alternatives which, it is believed, may be 
equally or more efficacious, and not discountenanced 
by international law. These will be given subsequent 
attention. But, as the efficacy of an appeal to the 
application of the principle of rebus sic stantibus has 
been most frequently discussed, it may be well first 
to treat of that means as it is found in international 
law. 

1. The Principle of Rebus Sic Stantibus. States 
have frequently resorted to an appeal to the prin- 

China's hands, never again to be wrested by any foreign Power. Nor 
is it probable that in 1923 the Chinese Government would consent 
either to renew the lease or to leave the territory in an uncertain 
position"* (Yale Review, Nov. 1908, p. 272.) How true this state- 
ment was at the time may better be judged by the reader, but in 
1923, when China demanded the return of the lease, Japanese public 
opinion of all political shades seemed unanimously in favor of reten- 
tion indefinitely. Nor is there any evidence that this general attitude 
has materially changed. There are those in Japan, however, who, 
viewing the effectiveness of such reprisal instrumentalities as anti- 
Japanese boycotts and the present tendency of the Chinese in 
Manchuria to discriminate against the South Manchuria Railway, 
consider these factors as necessitating a new stock-taking of Japa- 
nese policy in Manchuria. 



186 CHINA'S BIGHT TO BBCOVEE THE LEASE 

ciple, presumed to be an implied condition of any 
treaty, that when a fundamental change of circum- 
stances has occurred which was not contemplated by 
either party to the treaty negotiated, or which make 
impossible or patently burdensome to one or the 
other state the continued fulfilment of that treaty, 
that instrument itself may be unilaterally denounced 
by either party. This is the principle, often called 
a doctrine, and perhaps improperly called the clause, 
of conventio omnis intelligitur rebus sic stcmtibus. 
It is, then, obviously contradictory, or at least an 
exception, to the universally recognized principle 
that treaties are to be observed explicitly pacta 
sunt servanda. Its origin goes back to the Roman 
law when states ' rights were not predicated on the 
assumption of the omniscience of the state as an 
entity. But it has been strongly advocated by cer- 
tain publicists, from Machiavelli through Treitschke, 
Bivier and Bluntschli, who were disinclined to admit 
that there was any law above that of the state itself. 
The principle of rebus sic stcvntibus, therefore, has 
peculiar bedfellows those who would press the 
analogy of private law situations in international 
dealings, and those who, while rejecting that analogy, 
place the state on Olympian heights above the de- 
fenders of a universal law which presumes to place 
limits on the state's own competence. 

It is such a presumed international legal principle, 
then, with which we have to deal in appraising 
China's right legally to notify an otherwise non- 



CHENTA'S BIGHT TO BECOVEB THE LEASE 187 

notifiable treaty. It is, moreover, patently impos- 
sible, because of space limits here, to give any ex- 
haustive treatment of the subject of rebus sic stan- 
tibus itself. Yet, its importance is snch that mere 
reference to it, without careful evaluation of the 
principle itself, would be worthless. In considering 
its possible application to the Kwantung leased terri- 
tory, or to the general Japanese treaty position in 
Manchuria, the following questions must be asked. Is 
such a principle, called rebus sic stantibus, univer- 
sally accepted by the publicists and manifested in 
practice in international dealings as an implied con- 
dition of any treaty? If so, when can it be applied, 
and under what circumstances? What are the opin- 
ions of the publicists as to the intrinsic justification 
of the principle under international law and its pos- 
sible bearing on the present stability of the interna- 
tional system? Has the principle been recognized by 
arbitral or judicial tribunals ? Do such precedents as 
may be derived from historical attempts of states to 
resort to the principle give evidence of its general 
acceptance as a part of international law? Is it, then, 
a part of international law? If a part of interna- 
tional law,, what are the limits of its use ? 

We have the authority of a number of the pub- 
licists that the principle of cowventio omnis wtel- 
ligitur rebus sic stcmtibus is an implied condition of 
any or all treaties, and that this is itself almost uni- 
versally recognized by the vast majority of pub- 
licists. These assertions, however, are extremely 



188 CHIHA'S EIGHT TO RECOVER THE LEASE 

misleading for, without defining one's terms, una- 
nimity in generalizations is of little value. Oppen- 
heim, for example, while admitting that there are 
dangers involved in its application, and noting that 
it had been " abused for the purpose of hiding the 
violation of treaties behind the shield of law ", 
affirmed the principle itself. 2 Lawrence, who did not 
accept the principle, nevertheless, declared it obvious 
that treaties " cannot remain unchanged forever ". 8 
But this, it should be noted, is a very different thing 
from asserting that the implied conditions of any 
treaty are always definitely clear, and is, in itself, 
but the basis for rules of law which would explain 
just under what conditions a specific treaty might be 
denounced unilaterally by one part to the treaty. 

The moment one enters into the field of inquiry as 
to when the assumed principle of rebus sic stantibus 
can be applied in practice one is confronted with no 
universally accepted rule of interpretation, and only 
dissention among the publicists. Perhaps there could 
be no question but that one of these conditions to any 
treaty is the continued maintenance of the states 
themselves: absorption of a material part of one 

2 Oppenheim, L. International Law, Vol. I, pp. 746-763. (4th ed.) 
Westlake affirmed: " Almost all theorists agree that to many treaties 
the tacit condition rebus sic stantibus is attached: they were con- 
cluded in and by reason of special circumstances, and when those 
circumstances disappear there arises a right to have them rescinded ". 
(International Law, Vol. I, p. 284.) (Of. Fenwick, C. G. Interna- 
tional Law, p. 344.) 

3 Lawrence, T. J. The Principles of International Law, p. 288. 
(3rded.) 



EIGHT TO EBCOVEB THE LEASE 189 

state by an outside power might bring about such a 
change of circumstances that it would be patently im- 
possible on the part of the other state to fulfill its 
obligation. 4 A large group of writers, particularly 
of continental Europe, with the support of the posi- 
tivist, W. E. Hall, has claimed that if the observance 
of a treaty is prejudicial to the right of " self-preser- 
vation " of a state, the principle may be appealed to 
as sufficient grounds for denouncing the treaty. 5 
Others, like Oppenheim, hold that, when the " vital 
development " of a state is prejudiced by a treaty, 
it may be denounced. Hall also offered the dictum 
that " neither party to a contract can make its bind- 
ing effect dependent at his will upon conditions other 
than those contemplated at, the moment when the 
contract was entered into, and on the other hand, a 
contract ceases to be binding so soon as anything 
which formed an implied condition of its obligatory 

4 Fenwick, op. cit., p. 345. 

6 Hall, W. E. International Law, pp. 361-370, (7th ed.) Oppenheim 
similarly held that when the existence of a state is in conflict with 
treaty obligations the latter must give way. " . . . . Every treaty 
implies a condition that, if by an unforeseen change of circumstances 
an obligation stipulated in the treaty should imperil the existence 
or vital development of one of the parties, it should have a right to 
demand to be released from the obligation concerned." (Oppen- 
heim, L., op. cit., p. 748.) John P. Bullington, in an article entitled 
"International Treaties and the Clause 'Rebus sic Stantibus'", 
shows the indecisiveness of Hall's dictum by asserting: "Thus an 
ambiguous clause is defined in even more shadowy and disputable 
phrases", (tf. of Pa. Law Review, Vol. 76, 1927-1928, p. 170.) Fora 
criticism of Hall, see Sir John Fischer Williams in The American 
Journal of International Law, Vol. 22, Jan. 1928, p. 89. 



190 CHHTA'S BIGHT TO BECOVER THE LEASE 

force at the time of its conclusion is essentially 
altered ". 

Among those who may be characterized as the 
strongest advocates of the principle of rebus sic stcw- 
tilus, and who particularly would apply it whenever 
the right of "self -preservation " of a state comes 
into necessary conflict with an existing treaty, are 
Jellinek, Bluntschli, Bivier, Treitschke, Ullmann, de 
Louter, Schmidt, and Hall. 7 There is evidently among 

6 Hall, op. cit. f pp. 361-370. Westlake comments on this statement 
of Hall that the question only arises when there is a difference as 
to what conditions were implied, or were contemplated, "not as 
existent or possible, but as essential ". (Westlake, op. cit., p. 285.) 

7 Jellinek, who explained the reason for the existence of the principle 
in the nature of the state and its omnicompetence came precariously 
near the conclusion that treaties are merely " cMffons de papier". 
(Die Lehre von den Staatenverbindungen, pp. 100-104, Wien, 1882.) 
Bluntschli, holding that treaties are made essentially for the state's 
own good, came to a conclusion that states are to be bound by 
treaties only when they see them entirely unpre judicial to the inter- 
ests of the state. (Droit International Codijte, Sec. 458, 460. 4th ed.) 
Rivier, that arch-advocate of the superiority of the state to all 
international law, held: "When a conflict arises between the right 
of self-preservation of a state and the duty of that state to respect 
the right of another, the right of self-preservation overrides the 
duty. Primum vivere. A man may be free to sacrifice himself. It is 
never permitted a government to sacrifice the state of which the 
destinies are confided to it. The government is then authorized, and 
even in certain circumstances bound to violate the right of another 
country for the safety of its own. That is the excuse of necessity, an 
application of the reason of state. It is a legitimate excuse." (Prin- 
cipe* du droit des gens, Vol. I, p. 277.) Treitschke, who maintained 
that the state was a "super-person", and, like Machiavelli, saw in 
the state an institution which possessed "BO exalted and special a 
character as to render inapplicable to its acts the criteria of right by 
which the conduct of private individuals is to be judged" (Wil- 
loughby, W. W. The Ethical Basis of Political Authority, p. 123), 
affirmed that "the State is Power ", and naturally came to the con- 



CHINAS BIGHT TO KEOOVBB THE tEASB 191 

the publicists who adhere to the positivist and Aus- 
tinian concept of the state and the state's sover- 
eignty a tendency to recognize the application of the 
principle of rebus sic stantibus the more unquali- 
fiedly as these advocates tend to exalt the state above 
all other political institutions. 8 No one, perhaps, has 

elusion that, there being no " power " or " force " above it, the state 
could abrogate treaties unilaterally to suit its own desires. . (Treit- 
schke, Politics, p. 3 ff. 1916 ed.) Ullmann and de Louter seem inclined, 
as most of the unqualified advocates of the Austinian concept of the 
state do, to emphasize that, because a state cannot be bound except 
by its own will, that will may change and there is no law above it. 
(Ullmann, Volkerrecht, 6, Tubingen, 1908; de Louter, Le Droit 
International Public Positif, pp. 172 ff. Oxford 1920.) Hall's views 
have been characterized above. Machiavelli's famous dictum reoccurs 
appropriately here : " Therefore a wise lord cannot, nor ought he 
to, keep faith when such observance may be turned against him, and 
when the reasons that caused him to pledge it exist no longer." (The 
Prince, Ch. 18. Marriott trans., p. 142.) He ought, said Machiavelli, 
to keep faith whenever possible, and when not possible, to be a good 
pretender concealing a breach of faith under a cloak of. morality. 

s But there is a difference between advocacy of a concept of the 
state which disregards the accepted rules of international intercourse 
and international morality and the strictly fonnalistic and juristic 
concept of the state which admits that the state, as an entity 
having no legal superior, is nevertheless, obligated to observe both 
the accepted rules of international conduct and reasonable principles 
of morality and justice. Dr. W. W. Willoughby, perhaps the most 
consistent and ardent advocate of what may be termed a neo- 
Austmian and juristic concept of the state, admits of an international 
law as "a body of international principles" or a " system of juris- 
prudence " and departs from the narrow Austinian view of " inter- 
national law " as merely a system of " positive morality ". Conse- 
quently, Dr. Willoughby is not to be classified with those who, 
carrying the Austinian theory to its extreme, hold that the principle 
of rebus sic stantibus is merely one declaratory of the right of a 
state to do just about as it chooses to do in any given case. 
(Willoughby, W. W. The Fundamental Concepts of Public Law, 
Ch. XVI. "Sovereignty and International Law", pp. 27&-306. Com- 
pare, however, his earlier view. Nature of the State, p. 199.) 



192 CHINA'S BIGHT TO EECOVBB THE LEASE 

written more incisively in criticism of this presumed 
right of self-preservation " than Westlake, who, 
while admitting the dictum of Wolff that a state 
ought " to preserve and perfect itself >f , neverthe- 
less, stated that " the first interest of a society, na- 
tional or international, is justice; and justice is 
violated when any state which has not failed in its 
duty is subjected to aggression intended for the 
preservation or perfection of another ". The prin- 
ciple of rebus sic stantibus, then, if generally ac- 
cepted, would perhaps more often be used as an 
instrument of aggression than of defense against 
aggression, for the practical utility of its assertion 
will, as has been the case in the past, depend upon 
the physical or other persuasive force, of the state 
applying it to compel compliance with its desires. 

"We turn, then, to the publicists who refuse to ad- 
mit the principle of .rebus sic stantibus as having 
any accepted place in international law, or who, 
while admitting the necessity of recognizing that 
some treaties in their nature manifestly become im- 
possible of fulfilment through obsolescence or be- 
cause conditions, patently essential to the enforce- 
ment of the treaty, are no longer existent, neverthe- 
less, maintain that the principle of rebus sic stan- 
tibus, if admitted at all, should be used only in the 
most exceptional of circumstances, and then only in a 
limited few situations. We find here a still larger 
group. Among these is the majority of Anglo- 

9 Westlake, op. cit^ Vol. I, p. 299. 



CHINA'S BIGHT TO EECOVEB THE LEASE 193 

American writers, including Westlake, Oppenheim, 
Lawrence, and the contemporary publicists Sir John 
Fischer Williams, Brierly and Keeton. 10 Grotius 
" saw no legitimate relief for the suffering party, but 

10 " Anglo-American writers are practically at one in reducing within 
narrow compass the grounds on which a treaty becomes voidable ". 
(Keeton, G, W. * The Revision Clause in Certain Chinese Treaties ", 
in The British Year Book of International Law, 1929, pp. 111-136.) 
Westlake, as suggested above, took strong issue with both Hall and 
Rivier, and held that the so-called right of denouncing a treaty was 
" an imperfect one, demanding for its perfection in any case better 
definition than in the present state of international law is attainable ". 
He did not, however, condemn it in toto but would have it restricted to 
narrow limits within which it should be exercised only " with a grave 
sense of moral responsibility'*. (Westlake, op* cit., Vol. I, p. 285.) 
Oppenheim, who has frequently been cited as one who unqualifiedly 
maintained the existence of rebus sic stantibus as a necessary excep- 
tion to the rule pacta sunt servanda, very definitely stated that " it 
is generally agreed that the clause (doctrine) rebus sic stantibus may 
only be resorted to in very exceptional circumstances, and that cer- 
tainly not every change in circumstances justifies a State in making 
use of it ". (Oppenheim, op. cit., Vol. I, p. 768.) Lawrence avoided a 
definite statement on the subject, preferring to conclude that " when, 
and under what conditions, it is justifiable to disregard a treaty, is 
a question of morality rather than of law ". (Principles of Interna- 
tional Law, p. 288, 3rd ed.) Sir John Fischer Williams has recently 
directed criticism to Oppenheim's assertion that, when an " unforeseen 
change of circumstances" actually imperils "the existence or vital 
development of one of the parties " it should have a right to demand 
to be released from a treaty. (American Journal of International 
Law, 1928, p. 89.) Professor Brierly does not admit such a doctrine in 
international law. (Cf . The Law of Nations, pp. 168-175; Transactions 
of the Grotius Society, Vol. XI, p. 13.) Professor Keeton, who has 
written of rebus sic stantibus in direct relation to the so-called 
" unequal treaties " in China, concludes that " . . . . from the stand- 
point of international law, it is not universally agreed that the doc- 
trine of rebus sic stantibus is part of International Law at all, and 
that those authorities who admit it do not agree concerning its scope 
or the effect of it when invoked ". (The British Year Book of Interna- 
tional Law, 1929, pp. 111-136.) 



194 CHINA'S BIGHT TO EECOVEB THE LEASE 

would require the complete fulfilment of the terms of 
the treaty ". He held strictly to the rule that pact a 
servanda swat, except in cases where it was " most 
patently clear " that the original circumstances were 
so changed as to make it absolutely impossible of ful- 
filment. 11 Vattel took a somewhat similar position 
maintaining that a promise given in a treaty was to 
be kept, and that " only a change in those circum- 
stances which can lawfully hinder or suspend the 
effect of the promise ", namely, a change of circum- 
stances essential to the treaty itself, can alter the gen- 
eral rule. 12 Bynkershoek, without hesitancy, rejected 
the unilateral denunciation of a treaty by one of its 
signatories. 18 

Most American writers seem to have made little 
effort to redefine or to improve the definiteness of 
the doctrine of rebus sic stantibus" An exception 

11 De Jure Belti ac Pacts, Bk. H, Ch. XVI, Sec. 25. Cited by Fen- 
wick, op. cit., p. 346; Bullington, op. <&., U. of Pa. Law Review, Vol. 
76, 1927-1928, p. 164. 

i* Droit des Gens, Bk. II, 296. Vattel did, however, hold a treaty 
voidable when its observance might lead to the ruination of the state. 

! Quaestiones Juris PubUcae, Bk. II, 10. 

14 George Grafton Wilson merely says that " the condition rebus 
sic stantzbus is always implied "without further attention to the host 
of conundrums that the statement inevitably produces, (Wilson and 
Tucker, International Law, p. 218, 7th ed.) Professor Freeman Snow, 
while instructor in internationaJ law and lecturer in the U. S. Naval 
War College, merely raised some question as to whether " self-preser- 
vation " was adequate grounds for denouncing an otherwise non-notifi- 
able treaty. (Naval War College Lectures: International Law Situa- 
tions, 1895, p. 74.) Samuel B. Crandall avoided the subject just where 
consideration of it would have been most appropriate to his study. 
(Treaties, Their Making and Enforcement, p. 250.) Becently, Pro- 
fessor Ellory C. Stowell has devoted a separate section to the subject 



CHINA'S BIGHT TO EECOVER THE LEASE 195 

is Professor Charles GL Fenwick who tersely, but in- 
formatively, discusses the principle, and concludes 
that, while publicists " would appear to be correct 
in stating as a rule of positive law the general prin- 
ciple that all international contracts are entered into 
under certain implied conditions ", " the conclusion 
to be drawn both from the practice of states and 
from the dicta of publicists and writers is that as 
regards the binding force of a treaty under a change 
of essential conditions international law has at pres- 
ent no definite rule which does more than approxi- 
mate to an accepted standard of conduct ". 15 

Sufficient has been said already, then to show that 
among the publicists, at least, there is no agreement 
as to whether the principle of rebus sic stantibus is 
or should be a. part of international law. The dis- 
agreement itself is evidence that it is ndt a part of 
international law, for, if the term law has any sig- 
nificance at all in international relations, it must have 
a very close approach to universal acceptance of 

of rebus sic etantibus without offering any treatment beyond well- 
known generalities. (International Law, pp. 402-403. 1931.) Professor 
Bullington's attention to the subject will be discussed later. 

18 Fenwick, op. cit., pp. 344, 348. "Each case", according to Dr. 
Fenwick, "has been judged on its own merits and judged, it would 
seem, under circumstances which inevitably tended to produce a divi- 
sion of opinion among the members of the international com- 
munity ". (p. 34S.) " There remains in the midst of this uncertainty 
merely the rule of good faith in its most general terms. The detailed 
applications of the rule in particular cases continue above the law, 
a matter for the moral conscience of the individual state, acting 
under a responsibility which international law creates but does not 
guide", (p. 349.) 

15 



196 CHINA'S EIGHT TO BBOOVBB THE LEASE 

which the views of the publicists should at least be 
declaratory. To recount the historical instances 
where the principle of rebus sic stantibus has been 
asserted by one or another state officially in par- 
ticular cases, or to evaluate the treatment given the 
subject by arbitral of judicial tribunals is beyond 
the scope of this work. But nevertheless, a few con- 
clusions may be hazarded, for it is imperative to 
know what has been the practice of states in this re- 
gard, even more so than it is important to note the 
opinions of the publicists. The statement of Pro- 
fessor Fenwick that the practice of states gives evi- 
dences that there is no generally accepted rule on the 
subject may be taken as authoritative. 

The principle of rebus sic stantibus was asserted 
by one of the parties to a treaty, for example, in each 
of the following cases, but in each instance termina- 
tion of the treaty, or replacement of it by another, 
was effected not by the unilateral denunciation of one 
state, but by bilateral or multilateral agreement: 
the case involving Bussia's attempt in 1870 to secure 
the abrogation of the treaty of Paris of 1856 which 
provided for the neutralization of the Black Sea; 18 

16 The classic example usually used to illustrate the principle of 
rebus sic stantibus as asserted by a state is that of Russia's attempted 
denunciation of the treaty of Paris (1856) which related to the 
neutralization of the Black Sea. Two facts concerning Russia's action 
in this regard in 1870 deserve special emphasis: first, the. claim of 
rebus sic stantibus was not the sole grounds on which denunciation 
of the treaty was made; and, second, the action of Russia was neither 
approved by the powers, nor was the treaty of 1866 abrogated unilater- 
ally by Russia. When, at the close of the Franco-Prussian war, the 
powers officially heard Russia's claim presented, it is noteworthy that 



CHINA'S EIGHT TO RECOVER THE LEASE 197 

the attempt of Austria to claim the principle in justi- 
fication of the annexation of Bosnia and Herzegovina 
in 1908 ; and the American resort to the principle to 
demand a revision of the Clayton-Bnlwer treaty with 
respect to the Panama Canal. 17 

"We have had, moreover, a resort to the principle 
of rebus sic stantibus by the Chinese Government in 
connection particularly with the termination of the 
Sino-Belgian treaty of 1865. 18 "While in this case 
China officially declared that the League of Nations 

the conference in London rebuked Russia for having presumed that 
the principle of rebus sic stantibus was sufficient grounds for uni- 
laterally abrogating any treaty. " It is an essential principle of the 
law of nations 9 ', said the conference, "that no Power can liberate 
itself from the engagements of a treaty, nor modify the stipulations 
thereof, unless with the consent of the contracting powers, by means 
of an amicable agreement." (British and Foreign State Papers, 
1870-71, p. 1198.) Professor Bullington, commenting on this situation, 
correctly wrote: "Russia acted upon the theory of the rebus sic 
stantibus clause, but her act was recognized as legitimate by no other 
state." (tf. of Pa. Law Review, Vol. 76, 1927-1928.) 

17 Although the United States originally contended that the prin- 
ciple of rebus sic stantibus was applicable to the Clayton-Bulwer 
treaty, the government later specifically recognized the inapplicability 
of the principle to this case. In 1896, Mr. Olney, the then Secretary 
of State, addressed to the President a memorandum hi which, after 
having stated his own disapproval of the policy of his predecessors, he 
declared: " Upon every principle which governs the relations to each 
other, either of States or individuals, the United States is completely 
estopped from denying that the treaty is in full force and vigor. If 
changed conditions now make stipulations, which were deemed ad- 
vantageous, either inapplicable or injurious, the true remedy is not 
in ingenious attempts to deny the existence of the treaty or to explain 
away its provisions, but in a direct and straightforward application to 
Great Britain for a reconsideration of the whole matter." (Lauter- 
pacht, op. c&v pp. 171-172. Footnote.) 

18 Keeton, Geo. W. in The British Year Book of International Law, 
1929, pp. 111-136. 



198 OHOTA'S BIGHT TO BECOVEB THE LEASE 

Covenant in Article 19 " clearly recognizes the 
fundamental principle of rebus sic stantibus govern- 
ing international treaties which have become inap- 
plicable " it is not evident that Belgium ever ac- 
cepted the Chinese statement of the principle, or that 
the principle was accepted by other states* The Sino- 
Belgian treaty was, in fact, terminated legally by 
negotiation of a new one. 19 This last situation illus- 
trates very clearly how important it is to provide by 
clear statement in any treaty, where it is at all pos- 
sible, for its definite termination at a stated time. 
The most serious dangers, however, arise under trea- 
ties which in their nature cannot have stated periods, 
and must be either of long duration or perpetual. We 
may conclude, then, that while many states have re- 
sorted to the principle of rebus sic stantibus to notify 
an otherwise non-notifiable treaty, abrogation or re- 
vision has generally been secured not through action 
based on a recognition of the principle as a part of 
international law, but rather by -agreement of the 
parties concerned in each case. Such evidence as may 
be adduced from the judgment of arbitral and judi- 
cial tribunals tends to the same conclusion, namely, 

19 Keeton, op. cit.CX. Chinese Social and Political Science Review, 
1926, Public Documents Supplement, p. 21. Similarly, with the 
abolition of the Turkish capitulations by the Treaty of Lausanne in 
1923: Turkey claimed the application of the principle of rebus *tc 
stantibus but the principle was not recognized as a part of inter- 
national law by other states concerned, and, in fact, the capitulations 
were removed, not by operation of the principle, but by bilateral 
agreements with Turkey. (American Journal of International Law, 
1826, Vol. 20, pp. 346-353; Keeton, op. c&, p. 117.) 



BIGHT TO BECOVEB THE LEASE . 199 

that rebus sic stantibus is neither a clearly defined 
principle, nor that it has as yet an accepted place in 
international law. 20 

We may conclude, then, that the principle itself 
is not as yet a part of international law, lacking as it 
does either the universal acceptance of the publicists, 
the evidence of acceptance in practice by states in 
their relations with one another, or the decisive and 
enforced dicta of arbitral or judicial tribunals. 21 The 
difficulty of laying down a hard and fast rule on this 
subject, particularly as the dangers to the abuse of 
the principle may tend to increase just to the degree 
to which acceptance of it becomes definitive, has so 
far prevented any codification of rules to the point. 

2 <> Hooper v. The United States (U. S. Court of Claims, 1887, 22 Ct, 
Cl. 408) has been erroneously cited in support of the assertion that a 
treaty may be abrogated by one party by asserting the principle of 
rebus sic stantjbus. In this case the dictum of the court itself to the 
effect that " abrogation of a treaty may occur by a change of circum- 
stances " clearly was delivered on the assumption that, in the case at 
hand, involving the Clayton-Bulwer treaty, there had been previous 
violation of the treaty on the part of Great Britain. (Scott's Cases on 
International Law, pp. 470 ff. 1922.) Professor John P. Bullington 
concludes his survey of such .instances by asserting: "No case is 
known to the writer in which a nation has been able to escape treaty 
obligations because the other party recognized the clause rebus sic 
stantibus as implied in the treaty by international law ". (Bullington, 
op. cit., p. 167.) 

21 "The doctrine has not become a rule of positive international 
law; not only because the instances of its application are highly infre- 
quent, but also because in those rare cases in which it has .been 
invoked it has been rejected by the other contracting party against 
whose interests the denunciation of the treaty was directed." Lauter- 
pacht, H. Private Law Sources and Analogies of International Law, 
p. 170.) (Brierly, J. L. The Law of Nations, pp. 168 ff.; Fenwick, 
op. tit., pp. 344-348.) 



200 CHINA'S BIGHT TO BBCOVEE THE UBSASB 

There is, moreover, a large gronp of the contem- 
porary publicists who see in a further development 
and application of the principle of rebus sic stantibus 
.great dangers to maintenance of such stability as 
even at present exists in international life. 22 ' * There 
is,'-' to quote Professor Keeton, " a danger that the 
rule of pact a sunt servanda will become increasingly 
qualified by the doctrine of rebus sic stantibus, and 
the value of international undertakings will be pro- 
portionately diminished ' *. 28 

If, then, the principle is to be accepted at all and 
on this the writer refrains from a judgment it is 
believed its utility in an ordinary case should be 
limited to a claim of a right on the part of a state 
to be freed from the obligations of a manifestly ob- 
solete or particularly burdensome treaty. But this 
claim of right, if properly supported, should be taken 
merely as legal evidence in support of a claim to 
termination. No state in itself should be permitted, 
without either the express consent of the other party 
to a treaty, or without the judgment of an impartial 
tribunal, to liberate itself from a prior treaty obliga- 
tion. 2 * Lawrence, who realized the danger of the 

22 Oppenheim, who favored some application of the principle, recog- 
nized this danger that states might abuse it "behind the shield 
of law". 

28 "It is submitted that the clause rebus sic stantibus as sustained 
by the majority of writers is so pregnant with danger as to outweigh 
any considerations of possible benefit which might be derived from it 
in exceptional eases." (Bullington, op. dt^ p. 174.) 

24 Oppenheim, after considerable circumlocation, comes to this same 
conclusion: "States and public opinion everywhere have come to 



BIGHT TO EECOVEB THE LEASE 201 

principle in its possible effect on the present world 
system, concludes with a statement which is partic- 
ularly applicable to our own study: 26 

" Each case has circumstances that are peculiar to it, and 
we must judge it on its own merits, bearing in mind, on one 
hand, that good faith is a duty incumbent on states as well 
as individuals, and on the other, that no age can be so wise and 
good as to make its treaties the rules for all succeeding time/' 

2. Application of Rebus Sic Stantibus to the 
Kwantung Lease. The attention given the principle 
of rebus sic stantibus in the preceding section would 
seem to have been the more justified by the fact 
that nowhere has its non-acceptance in interna- 
tional law been less appreciated than in Eastern 
Asia. For any government to resort to the principle 
as such is to assume the existence in international 
law of something which is not to be properly charac- 
terized as a part of it. But, if, for purposes of de- 
scribing its possible application to the Kwantung 

the conviction that the clause rebus sic stantibw ought not to give 
the right to a State at once to liberate itself from the obligations by 
the other, parties to the treaty." The moment this becomes further 
qualified, unless by acknowledging the superiority of an impartial 
judgment of an arbitral or judicial tribunal, definite dangers are 
involved. 

25 Principles of International Law, p. 289, 3rd ed. Dr. Lauterpacht, 
after showing that the absence of a competent international tribunal 
has prevented the application of such a principle, and after suggesting 
that the World Court would be competent to pass on the purely 
legal phases of such an issue, asserts: " A treaty may become obsolete, 
oppressive, and out of accord either with postulates of justice or with 
political or economic conditions, and yet it need not necessarily come 
within the scope of the legal application of the claiwda" (Op. dt. f 
p. 174.) 



202 CHINA'S BIGHT TO BECOVEB THE I/RARE 

leased territory, it be conceded that such a principle 
were a part of international law, the question arises 
as to whether resort to it in this case would have any 
proper relation to the problem of this leasehold. 
There would be, then, but one central issue involved: 
have circumstances so changed since China cove- 
nanted to grant this lease to Japan, or agreed to its 
extension, that the principle of rebus sic stantibus is 
applicable? 

Were there conditions existing in 1905, when 
Japan obtained the lease first, or in 1915, when 
Japan obtained the further extension of it to 1997, 
which do not exist today, and which make the treaties 
concerned patently impossible of fulfilment? With 
respect to the remaining leaseholds in China, Dr. 
Hsia Ching-lin has asserted that " China is entitled 
to the protection of the doctrine of rebus sic stan- 
tibus ", 28 In support of this assertion he notes that 
since the " balance of power " in the Far East has 
materially changed, since the anticipated " break-up 
of China ' ' failed to occur, and since these were * ' the 
two real purposes behind these leases ", the trea- 
ties conferring them can be unilaterally denounced 

26 Hsia, Ching-lin, Studies in Chinese Diplomacy, p. 116. Care has 
been taken in the above sections to avoid describing the principle 
as a " doctrine ", for the latter connotes more or less universal accep- 
tance or, at least, enforceability. (Of. Professor McNair's edition of 
Oppenheiin on the point.) Dr. Hsia quotes Dr. M. T. Z. Tyau : " The 
pretext for continuing in possession of the leased territory no longer 
exists today, and therefore such territories should be restored to the 
original grantor. Cessante ratione, cessat lex ipea ". (Legal Obliga- 
tions, etc., p. 71.) 



BIGHT TO RECOVER THE LEASE 203 

by China. 27 Thus, it might be argued today that the 
return of Weihaiwei to China in 1930 strengthens 
this assertion. 

Aside from the fact that the principle of rebus sic 
stantibus is not recognized as a definite part of in- 
ternational law, would its application, if admitted, 
be properly described as above? The first element to 
note is that the treaties in question were not those of 
1898 granting Eussia the original lease of Kwan- 
tung, but rather the ones by which Japan acquired 
the lease and obtained the extension, namely, those 
of 1905 and 1915. The second very obvious element 
is that there can be no question but that the signa- 
tories had but one intention in those treaties : in the 
Sino- Japanese treaty of December, 1905, to grant the 
lease to Japan; in that of May, 1915, to grant a fur- 
ther extension of the lease period. This, then, does 
not appear to be such a case as would justify the ap- 
plication of the principle of rebus sic stantibus at 
all, at least in the ordinarily accepted interpreta- 
tions of it a device to relieve either party from 
articles of a treaty which, while not inapplicable or 

27 With the disappearance of Eussia as an Asiatic power and the 
'elimination* of Germany from Kiaochow, the policy of the 'bal- 
ance of power ' disappears ". (Hsia, p. 115.) Perhaps it may be more 
adequately said that the policy of the "balance of power" has not 
disappeared, but that the term has become somewhat too suggestive 
to describe such offensive and defensive alliances as exist in 
Central Europe today! En passant, Professor Bullington has noted 
that the system of " balance of power " in Europe may have had a 
good deal to do with the development of the notion that treaties were 
to be understood as having an implied condition of rebus sic stantibus. 
(Bullington, op. cU* p. 173.) 



204 CHINA'S EIGHT TO EECOVEB THE LEASE 

burdensome at the time of its negotiation, subse- 
quently became so. These treaties were as burden- 
some when they were negotiated as they are today, 
and, unless it be conceded that either state in nego- 
tiating them did not know what was the natural re- 
sult of granting complete jurisdiction to one party 
only, it could hardly be admitted that the Kwantung 
lease has latterly become so. The use which Eussia 
had made of the Kwantung leased territory before 
1905 is evidence that the Chinese Government recog- 
nized the political dangers involved in transferring 
it to Japan, Nor is there in the case of this leased 
territory a clear instance of a treaty which is mani- 
festly impossible of fulfilment, or of a treaty which 
has become obsolete, and, hence, burdensome. 

If, however, a change of circumstances were to be 
asserted, it would, of course, be necessary to de- 
scribe such changes as had taken place, not since 
1898, but since 1905 and 1915. To do so would be to 
pass judgment on questions of fact, not of law, and, 
if this is done here, it is only because something 
need be said to the point. The so-called " balance of 
power ' ' in Eastern Asia as of 1898 was, in fact, com- 
pletely upset by the end of 1905, particularly by the 
defeat of Bussia in the war with Japan. Since that 
date, however, Eussia has by no means disappeared 
as an Asiatic power. Contemporary Chinese opinion, 
looking to the results of the actual war, without a 
declaration of war, over the question of the Chinese 
Eastern Eailway in the summer of 1929, and the 



BIGHT TO EECOVEB THE LEASE 205 

dominant position of Soviet Eussia in Mongolia, 
could hardly be said to recognize that Eussia as a 
vital state influence has disappeared, particularly 
from Manchurian diplomacy. The real menace of 
Soviet Eussia for Japan, however, has apparently 
been very much exaggerated. Japanese publicists 
and certain of their statesmen, however, see in these 
circumstances adequate grounds for asserting that 
conditions have not so changed in Manchuria as to 
warrant return of Kwantung leased territory to 
China for the present. 28 

On these questions of fact or of diplomatic policy 
the writer refrains here from critical comment, con- 
cluding only with the assertion that, in a not impos- 
sible crisis in Manchuria, the principle of rebus sic 
stantibus, supported by the correlative so-called 
principle of necessity or of the " right of self- 
preservation ", might be as illegally applied by 
Japan as by China. Westlake noted that there may 
be a difference of opinion as to what are the implied 
conditions of a treaty, and that, therefore, the so- 
called right of rebus sic stantibus was an " imper- 
fect one ". It may rather be, however, that Japan's 

28 Recall, for example, Japanese official statements at the time of 
the International Banking Consortium negotiations during 1919-1920, 
and the re-enforcement of the Changchun garrison at the junction of 
the South Manchuria Railway with the Chinese Eastern during the 
Sino-Russian conflict of 1929. Such an expression of opinion of one 
Japanese official, Mr. Y. Matsuoka, now a member of the Japanese 
Diet and formerly vice-president of the South Manchuria Railway 
Company, is worthy of notice. (The Osaka Mcdnichi, Nov. 6, 
Manchuria Daily News, Monthly Supplement, Dec. 1, 1929.) 



206 CHINA'S EIGHT TO EEOOVEB THE LEASE 

principal motive for desiring to retain the Kwan- 
tung leased territory is rather the economic values- 1 
Dairen commanding the southern approach to the 
South Manchuria Railway, and the raw materials 
and markets which Japan believes essential to her 
existence as a state than the strictly strategic 
values of the lease. China, likewise, can reasonably 
contend an increased dependence on her Manchurian 
territory to which the leased territory is a natural 
approach. Thus, so far as any legal evidence can be 
adduced in support of an alleged " change of circum- 
stances " with regard to the Kwantung leased terri- 
tory, it is quite manifest that there are no facts, 
speaking juristically. Rebus sic stawtibus, the more 
unrestricted it be applied as grounds for notifying an 
otherwise non-notifiable treaty, tends to become a 
two-edged sword which may be used both for defense 
and offense, and the keenness of the one edge may be 
seriously damaged by the temper of the other. 29 The 
so-called " right of self-preservation " and the right 
to safeguard the " vital development " of the state 
are dangerous generalities which, in this day of 
economic interdependence of states, are more likely 
to be asserted effectively by a state having sufficient 
political and military power to illustrate their mean- 

29 It was by resorting to the principle of rebus sic statntibus that 
Austria claimed justification for the annexation of Bosnia and Herze- 
govina in 1908. These provinces had previously had a status super- 
ficially similar to a leased territory. It is generally admitted that 
China was in far greater danger of having her administrative integrity 
seriously impaired in 1915 than she is today* 



CHINA'S EIGHT TO RECOVER THE LEASE 207 

ing than by a physically weaker state. At all events, 
the principle of pacta servanda smt is as universally 
accepted a principle of international law as exists. 80 
We may conclude, then, that while the so-called 
principle of rebus sic stantibus is not to be taken as 
a constituent part of international law, it is, on the 
other hand, not necessarily an illegal principle, and 
that, therefore, a state may resort to it if it wishes, 
but should do so with the knowledge that affirmation 
of the principle in itself is not evidence of a right to 
terminate an otherwise valid treaty. The Chinese 
Government, as a matter of policy, could not be criti- 
cized for making use of the principle for bargaining 
purposes. That such use of the assumed principle as 
such is not likely to receive the support of third 
states, far less of Japan, is obvious from past events 
of diplomatic history. 

80 It is interesting to note that Dr. Lon Yang, who affirms the 
application of the principle of rebus sic ttontibuBmtiiwit citing 
authority as to its place in international law does so especially with 
respect to Weihaiwei, having written his* dissertation before the 
retrocession of that leasehold actually took place in 1930. It is 
noticeable that he refrains from applying the principle, and, therefore, 
of describing its application, to the case of the Kwantung leased ter- 
ritory. (Yang, op. cit., pp. 158 ff.) 



CHAPTER X 

DIPLOMATIC NEGOTIATION AND POLITICAL MEANS OF 

SOLUTION 

Kwantung is not a perpetual lease, nor is there 
any presumption in favor of renewal upon the ter- 
mination of the time limit now set for its duration. 1 
That is sixty-six years from now a period which, 
measured in retrospect from the present, would be 
as long as the time which has elapsed since the close 
of the American Civil War, since Minister Anson 
Burlingame resigned from his Peking post to nego- 
tiate for China the first treaty in which China was 
recognized as fully sovereign and equal in status 
with the states of the West, or since the period when 
Japan was still a feudal empire. The year 1997, 
therefore, may well be considered by China a long 
time to wait ! Whether Japan will, therefore, retain 
possession of the Kwantung lease until that time is 
a fascinating subject for speculation. 

Two conclusions have emerged from the presen- 
tation of testimony in the foregoing chapter. The 

1 The Sino-Japanese treaty respecting South Manchuria and East- 
ern loner Mongolia, May 25, 1915, provides (Art. 1) that: "The two 
High Contracting Parties agree that the term of lease of Fort Arthur 
and Dalny [Dairen] and the terms of the South Manchuria Railway 
and the Antung-Mukden Railway, shall be extended to 99 years." 
(MacMurray, Vol. H, p. 1220.) 

The exchange of notes of the same date provided simply that the 
specific date for expiration of the lease of Kwantung (here referred 
to as Port Arthur and Dalny) should be 1997. (MacMurray, Vol. n, 
p. 1221.) 

208 



DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 209 

one was that, if strictly legal criteria be solely con- 
sidered, China is effectively estopped for the pres- 
ent, from recovery of the Kwantung lease, either by 
asserting the intrinsically void character of the 1915 
agreements, or by assuming them to be voidable on 
the ground of attendant force majeure or improper 
ratification and subsequent denunciation. The other 
conclusion, hardly more than suggested in the pre- 
ceding sections, was that, from the point of view of 
international morality, China's claim against those 
agreements of 1915 is unquestionably much the 
stronger. This is not to say that the student of in- 
ternational law is indifferent to ethical considera- 
tions in any given case. International law should 
conform as closely as possible to international stand- 
ards of ethics and of justice, and states, like the pub- 
licists, are not unmindful either of the censure of 
third parties on moral grounds or of the ethical 
ideal which, in fact, has played no small part in the 
development of state practices out of which inter- 
national law itself has grown. A statement of a rec- 
ognized publicist, Professor T. J. Lawrence, occurs 
appropriately here : 2 

"All we contend for is that the question what are the rules 
of International Law on a given subject, and the question 
whether they are good or bad, should be. kept distinct They 
differ in their nature and in their method of solution, and 
nothing but harm can come of any attempt to unite them. 
Yet it is the duty of publicists to put ethical considerations 
prominently forward in many parts of their work." 

3 Lawrence, T. J. Principles of International Law, p. 23, (3rd ed.) 



210 DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 

It might be added that both contemporary pub- 
licists and states have come to discountenance those 
state acts which, in the nineteenth century, were 
looked upon, especially by such publicists as JJivier, 
Treitschke and others of the extreme positivist 
school, as morally justified merely because deemed 
practically necessary in the interests of a given state 
to enhance its power or provide for its presumed 
needs of development. International law, to repeat, 
is not unmindful of moral considerations, or blind 
to the equities of a given situation. No more con- 
vincing evidence of this emphasis today can be found 
than the provision of the statute of the Permanent 
Court of International Justice which permits of the 
decision of a case, under certain conditions, ex aequo 
et bonoin. other words, on the basis of equity 
aiid the merits or justice of the case itself, without 
rigid reliance on legal technicalities. This provision 
suggests, for example, that international law may 
be expected to develop progressively toward the goal 
where it may be closely identified with justice itself. 
How- rapid may be this development, and with what 
application to such a situation as the agreements of 
1915 which extended the period of the Kwantung 
lease, to which such principles would have to be ap- 
plied retroactively, are problems on which no cau- 
tious writer would presume to make a prophecy. 

Differentiating, then, between strictly legal cri- 
teria, as at present derivable from contemporary 
international law, and ethical considerations, prac- 



DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 211 

tically applicable to a given political situation but not 
in themselves necessarily creators of the rule of 
law, there is purpose in pointing the importance 
of a phrase in Professor Lawrence's assertion, 
quoted above, which was to the following effect: 
International law and international ethical consid- 
erations should be kept distinct. " They differ in 
their nature and in their method of solution. " The 
latter, it would seem correct to say, is the method of 
solution by political means. 

Here, again, it is imperative that the distinction 
between international legal means and political 
means be clearly understood. The latter, to be ac- 
ceptable to international law, need only to be not 
prohibited by it. States are, therefore, within their 
rights in resorting to methods of protest, non- 
cooperation and boycott in the economic field, as well 
as embargoes, reprisals and retorsion, to secure re- 
dress against injuries which may or may not be in 
themselves illegal.* While neither reprisals nor re- 
torsion could legitimately or reasonably be resorted 
to by China against a past and continuing injury, 
according to the Chinese view, involved in Japanese 
retension of the Kwantung lease, the rules of law 
applicable to them illustrate most clearly how rela- 
tively unrestricted is a state which seeks to resort 
to them to obtain redress for injuries from another. 4 

* Fenwick, C. G. International Law, pp. 420 ff.; Hyde, C. C. Inter- 
national Law, Vol. II, pp. 172 ff.; Wilson and Tucker, International 
Law, pp. 226 ff. (7th ed.) 

* Retorsion is a form of retaliation in kind, or through means anal- 
ogous to the act protested against as injurious: such, for example, as 

16 



212 DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 

But there is a field of political action, left open to 
an injured state, which is not only not proscribed by 
international law, but which is potentially applicable 
to such a situation as the Kwantung leased terri- 
tory. China has not been estopped under recognized 
rules of international law from raising the question 
of an equitable solution of the issue of the extension 
of this lease whenever an opportune occasion arises. 
The Chinese Government has properly taken care 
on several occasions, notably at the Washington 
Conference in 1921-22, to reserve the right to re- 
open this question. The statements of Dr. C. T. 
Wang, reserving China's right to raise the question 
again through proper diplomatic channels, were 
these : 

" Because of the essential injustice of these provisions, the 
Chinese Delegation, acting in behalf of the Chinese Govern- 
ment and the Chinese people, has felt itself in duty bound to 
present to this Conference, representing the Powers with sub- 
stantial interests in the Far East, the question as to the equity 

discriminatory tariffs, anti-alien land laws or harbor restrictions di- 
rected against a particular state. Reprisals, on the other hand, are 
usually defined to include any form of forcible redress, short of war, 
and differ from retorsions, first, in that they are usually resorted to 
against allegedly illegal acts of an offending state, and, second, in 
that ih.y are not limited to retaliation in kind. (Of. Fenwick, op. 
cti., pp. 420-422.) u As in the case of retorsion^ there are no rules of 
international law governing the resort to reprisals, other than the 
obvious rule that if redress be granted the property seized must be 
restored. 5 * (p. 422.) Retorsion may well be regarded, as by Dr. 
Fenwick, as a form of state action " on the outskirts of international 
law.*, for here is opportunity for a claim that the questions involved 
are ^domestic Questions". (Cf. Hyde, Vol. H, p. 174, for a more 
restricted definition of reprisals.) 



DIPLOMATIC NUGOTIATI01T AND MEANS OP SOLUTION 213 

and justice of these agreements and therefore as to their 
fundamental validity. 

" If Japan is disposed to rely solely upon a claim as to the 
technical or juristic validity of the agreements of 1915, as 
having been actually signed in due form by the two Govern- 
ments, it may be said that, so far as this Conference is con- 
cerned, the contention is largely irrelevant, for this gathering 
of the representatives of the nine Powers has not had for its 
purpose the maintenance of the legal status quo. Upon the 
contrary, the purpose has been, if possible, to bring about such 
changes in existing conditions upon the Pacific and in the 
Fax East as might be expected to promote that enduring 
friendship among the nations of which the President of the 
United States spoke in his letter of invitation to the Powers 
to participate in this Conference." . 

Dr. Wang then presented four reasons 5 in the 
main involving political and ethical, rather than 
legal, objections which, he urged, should counsel 
that the SinoJapanese treaties and notes of May 25, 
1915, be considered " the subject of impartial ex- 
amination with a view to their abrogation ". 6 As an 
omen for the future, Dr. Wang presented the fol- 
lowing resolution : 7 

" Resolved, That the negotiations carried on with China by 
the present -Government have been inappropriate in every re- 
spect; that they are detrimental to the amicable relationship 
between the two countries, and provocative of suspicions on the 
part of the Powers; that they, have the effect of lowering the 

* These reasons were considered in a previous chapter. 

* By. inference, a statement technically admitting; for the time 
being, th^ir binding validity. . . 

T Conference Proceeding** PP- 338-334. (Sixth , Plenary Session, 
Feb. 4, 1922.) 



214 DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 

prestige of the Japanese Empire; and that, while far from 
capable of establishing the foundation of peace in the Far 
East, they will form the source of future trouble." 

This declaration was made, said Dr. Wang, " in 
order that the Chinese Government may have upon 
record the view which it takes, and will continue to 
take, regarding the Sino-Japanese Treaties and Ex- 
changes of Notes of May 25, 1915 ".* 

This reservation of right on China's part has legal 
significance. It constitutes neither a declaration that 
the agreements are illegal and void intrinsically, 
nor an assertion of their voidability on specific legal 
grounds, but it does furnish evidence of China's in- 
tention, not disapproved by the Conference itself, to 
resort to such political means as might in future be 
available toward a solution in China *s favor. This, 
then, is not a closed question, either in a strictly legal 
sense in spite of the obvious strength of Japan's 
case on purely juristic grounds or in, what is more 
important, a political sense. China has reserved the 
right to press for a revision of the 1915 agreements 
whenever an appropriate occasion arises. 

6 Ibid., p. 334. These statements, originally made in committee, 
were subsequently made in a plenary session, and were entered upon 
the record of the Washington Conference as a part of its official 
proceedings. Dr. V. K. Wellington Koo, on the motion to incorporate 
Dr. Wang's declarations in the official record, explained that it should 
be understood that " the Chinese Delegation reserved their right to 
seek a solution on all future appropriate occasions " concerning this 
matter. The Chairman then stated: " Of course it is understood that 
the rights of all Powers are reserved with respect to the matters men- 
tioned by Mr. Koo." (/bi,p. 338.) 



DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 215 

What practical significance, then, may these fac- 
tors have? In the language of diplomacy, these 
considerations strengthen China 's " bargaining 
power ". So also do the specific facts that, attending 
these negotiations of 1915, there was, on Japan's 
part, a threat of force; that the negotiations were, 
in truth, highly extraordinary, the demands and the 
ultimatum coming when there was no just cause for 
war on Japan's part and no justification for such 
extreme measures; that Yuan Shih-k'ai was forced 
into a position where he had to choose between the 
interests of his own country and his own political 
future ; and that the element of a quid pro quo is 
entirely absent from these agreements. These fac- 
tors, to repeat, are none of them, singly or as a 
group, sufficient to invalidate the agreements in 
strict law. They do, however, present a rather 
sordid picture of diplomacy by which a state would 
hardly be willing to be judged. 9 

Before treating of the only possible political solu- 
tion which is likely to be at all productive of mutu- 
ally satisfactory results, it may be pertinent, in the 
light of the distinctions drawn above as to the legal 

9 Pew Japanese would today seek to defend in a foreign audience 
these agreements on grounds of their ethical standard. The world 
knows that no single act of Japanese diplomacy has been so subject 
to general censure as the so-called " Tewnty-one Demands ". It 
should be recalled that the Terauchi Ministry which replaced Count 
Okuma and his cabinet bitterly censured these, demands in open 
debate in the Diet in 1916. Japan's dilemma is to retain the most 
significant of what is left of the concessions thus obtained and, at the 
same time, be relieved of the censure which has not disappeared in 
the West, and, presumably, will have a long life in China. 



216 DIPLOMATIC SHEGOTIATIOtf AKD MEAKS OF SOLUTION 

and the political phases of this question of the ex- 
tension of the Kwantung lease period, to raise cer- 
tain questions as to whether alternate means are 
available for the parties in seeking a solution. Might 
the World Court or arbitration procedure offer 
assistance? 

Three considerations influence the judgment that 
neither of these alternatives can at present offer any 
assistance. First, and of greatest practical signifi- 
cance, is the fact that the Japanese Q-overnment 
would hardly agree to a submission of the case to 
the arbitrament or adjudication of any outside or 
third parties. There is no evidence that the Japa- 
nese Government have altered the attitude expressed 
by Mr. Hanihara at the Washington Conference that 
this is a question whicH, " if it were to be taken up at 
all ' \ must be ' ' taken up between Japan and China ' ' 
to the exclusion of third parties. 10 No question, it 
may be added, between Japan and China concerning 
Manchuria has ever been submitted to arbitration 
or adjudication by an impartial tribunal. No bilat- 
eral general arbitration treaty exists between them. 
Nor is there any material evidence to show that the 
Chinese Government, any more than the Japanese 
Government, have expressed a willingness to provide 
such instruments of arbitration for Manchurian 
questions generally, or for such a question as the 

10 Conference Proceedings, p. 1160. The unanimous opinion of the 
Japanese groupconservatives and liberals at the Third Biennial 
Conference of the Institute of Pacific Relations, held at Kyoto, 
Japan, in 1929, is further evidence. This latter conference was, of 
course, unofficial. 



DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 217 

Kwantung leased territory in particular. Questions 
of vital interest to both states are involved, and each 
has preferred to deal with them through the ordin- 
ary channels of diplomacy and bilateral negotia- 
tion except (and the qualification is important) 
where the one may have sought to obtain diplo- 
matic support from third parties in particular emer- 
gencies. 

In the second place, it is not evident that the or- 
ganization and prestige of the Permanent Court of 
International Justice have arrived at such a stage of 
development and strength as to permit of their con- 
sideration of such a question as the Kwantung lease 
an inseparable element in all fundamental Man- 
churian questions. The World Court has so far con- 
fined its activities to cases having no application geo- 
graphically to Eastern Asia. Nor is the World Court 
to be censured for non-activity in a field where it 
has not been invited to participate. The World 
Court has yet to justify its name in Eastern Asia. 

Finally, this is clearly a political question, one 
which, whatever the jurisdiction of the World Court 
to decide a given case ex aequo et bono, would in- 
volve factors which make it inconceivable that any 
" case " could be so framed as to warrant its sub- 
mission to that body. Either state might well cite 
the public statements of the other during the past 
quarter century as to the relation of this territory 
to its " national security " or " national defense ''*. 



218 DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 

But if one were to grant that a " case " could be so 
framed as to eliminate political questions, would it 
be possible for an international tribunal, either of 
adjudication or arbitration, to decide the issue on 
legal grounds? No court, properly so called, could 
disassociate such an issue from the warp and woof 
of Sino-Japanese relations in Manchuria, for the 
relations of the Kwantung leased territory are iaex- 
tricably interwoven with the South Manchuria Bail- 
way, with the vested proprietary interests of Japan 
in these Manchurian areas, both in and outside the 
leased territory, with the questions of strategic se- 
curity and of economic livelihood, in such a way that 
the task of a tribunal of law, or of arbitration, would 
be at once baffling and impossible of fulfilment. The 
issue and an issue there is from a political point of 
view is not a proper or possible subject for an ad- 
justment either by arbitration or adjudication. 

What of the League of Nations! Here is a body 
which does deal with political questions. The Chi- 
nese Government have, in fact, suggested that one 
or more Manchurian questions be presented either 
to the Assembly or the Council for consideration, 
as during the controversy with Soviet Eussia over 
the Chinese Eastern Railway. The action in this 
latter case was abortive. Whatever may be said, 
however, with regard to the prestige of the League 
of Nations in China, particularly since the failure of 
China to secure re-election to a non-permanent seat 
in the Council, this situation is obvious : the League 



DIPLOMATIC NEGOTIATION- AND MEANS OF SOLUTION 219 

has performed, and is now performing, notable 
services in Eastern Asia, but has never ventured to 
participate in any of the really vital political ques- 
tions in the entire area. Nor is the League to be con- 
demned for this. The point here made is that its 
activity in the Pacific Area has not established prec- 
edents in dealing with mooted political situations 
which would counsel immature meddling in Man- 
churia. 11 It may be expected, however, that the Chi- 
nese Government may raise this question, along with 
other Manchurian questions, in the halls of the 
League, and to do so by an appeal to Article 19 of 
the Covenant which provides for reconsideration of 
treaties " which have become inapplicable and the 
consideration of international conditions whose con- 
tinuance might endanger the peace of the world " 
The advisability and possible efficacy of such an ap- 
peal may well be left a subject for individual 
speculation. 

Thus, it would seem, that the only course open for 
China in her declared policy of seeking a solution 

11 Ref. Young, C. Walter* " Sine-Japanese Interests and Issues in 
Manchuria ", article in Pacific Affair*, Dec., 1928, esp. p. 20. Cf. also : 
Problems of the Pacific, 1929, pp. 216 ff.; 225 ff. 

12 Dr. Lauterpacht, discussing the jurisdiction of the World Court, 
after explaining that a treaty "may become obsolete, oppressive, 
and out of accord either with postulates of justice or with political and 
economic conditions, and yet it heed not necessarily come within the 
scope of the legal application of the dausula [rebus sic stantibus]" 
concludes that the "remedy is here obviously a political one". 
(Lauterpacht, H. Private Law Sources and Analogie* of International 

p. 174.) 



220 DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 

of the question of the extension of the Kwantung 
lease f or this, and related questions in Manchuria, 
are the principal ,treaty obligations still left as a 
survival from the commitments originally secured 
in 1915 after the submission of the " Twenty-One 
Demands " is the avenue of bilateral diplomatic 
negotiation with Japan. This is a political solution. 
The indisposition of both the Chinese and Japanese 
governments to permit of intrusion of third parties 
into Manchurian questions except in instances 
where an appeal by one may well be expected to be 
rejected by the other is so evident as to require no 
further illustration. 18 But, as a practical means to- 
ward the goal which China seeks, there is room for 
doubt whether, should China seek to re-open this 
issue by addressing a specific communication to 
Japan, Japan would respond in any manner differ- 
ent from her reply to the Chinese Government on the 
same issue in March of 1923. That was a categorical 
refusal to discuss the question. 

Diplomacy, however, may take other forms, based 
on compromise, and, granted a progressively devel- 
oping internal political stability in China, this idea 
of the necessity of compromise may take on new 

1S Particularly evident at the Kyoto Conference was the unanimity 
of Japanese opinion that, if special machinery were to be created for 
adjustment of Manchurian questions, such machinery should be lim- 
ited to that which might be established by the two states themselves. 
Mr. S. Takaishi's plan for a a joint conciliation board" is one, 
though not to be regarded as at all definite or of practical importance, 
which was limited by the provision that only Chinese and Japanese 
were to be " authorized members . (Osaka MmmcM, Nov. 5, 6, 1929.) 



DIPLOMATIC NEGOTIATION AND MEANS OP SOLUTION 221 

meaning. That this is recognized by certain circles 
of opinion in Japan is evidenced by the feeling 
among them that the present general treaty situa- 
tion whatever Japan's legal rights under such 
treaties as have established the foundation of her 
political and economic endeavors in Manchuria is 
exceedingly unsatisfactory, 14 There are those who 
believe that Japan stands to suffer as much by per- 
petuation of the present treaty regime as does China. 
There are others, including Japanese, who believe 
that the time has already come when there is a neces- 
sity for a meeting of minds on Manchurian ques- 
tions, particularly in the field of economic exploita- 
tion. And there are still others among the Japanese 
who have begun to do more than toy with the idea 
of Sino-Japanese cooperation, instead of hostile 
competition, in Manchuria. These are moved by 
mixed motives, one of which is undoubtedly the 
growing feeling that, unless diplomacy leaves its 
well-worn groove of conservative conf ormism to an- 
tiquated ideals of narrow self-interest, and makes 
a new and bold effort to remove the obvious psycho- 

14 For example, the following Japanese statement at the Kyoto 
Conference in 1929: " There is at least one Japanese who does not 
always "wish to fall back on treaties. It is better to have some rules 
to go by, than none at all, but if the Japanese say that the sanctity 
of treaties must be observed, then it is inevitable that the Chinese 
will always return to this question. Treaties are made from tune to 
time; they are remade, revised and discarded. If I represented my 
government, I would stick to the sanctity of treaties because I would 
have to, but here as an individual, I do not have to. Cannot we there- 
fore approach this question, setting aside for a moment the sanctity 
of treaties?" (Problems of the Pacific, 1929, p. 185.) 



222 DIPLOMATIC KEGOTIATIOF AMD MEABTS OP SOLUTION 

logical obstacles to anything like sympathetic Sino- 
Japanese economic cooperation in Manchuria, the 
Japanese may be left, within even a decade, with 
huge investments which produce diminishing finan- 
cial returns, and, eventually, as much of an economic 
burden for the state and the taxpayers as formerly 
these investments have been an asset. Are these 
Japanese too optimistic? Or are they far-seeing? 

It is beyond the scope of this study to go farther 
afield from the legal implications involved in the 
issue of the Kwantung lease than to treat, as has 
already been done, of those political means, means 
which need to be discussed, if solely for the purpose 
of emphasizing that to be juristically estopped from 
appeal is not to be politically powerless. The effi- 
cacy of a policy, pursued wisely by China, and di- 
rected toward some form of solution of the lease 
question along with related matters such as the 
South Manchuria Eailway, may well become more 
certain for China as particular eventualities, such 
as the return by the electorate of more liberal minis- 
tries in Japan, appear. China, too, has a certain 
potential "bargaining power", inherent in the 
strength of her moral argument, which may be re- 
enforced in future by certain of those means of self- 
help which are, in cases, as effective as armed force, 
or more so. Of these none, in this situation, would 
be more influential than those passive weapons of 
protest and retaliation called economic non-coopera- 
tion and the boycott 



DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 223 

It is, too, beyond the scope of this study or the 
judgment of the author, to evaluate the possible 
results of the use of such weapons in this situation. 
Betaliation, either in kind or otherwise, might follow 
from Japan. China might have as much to lose as 
to gain by a resort to such strong measures. A 
cursory study of the interdependence of the Chi- 
nese and Japanese national economies, notably in 
the Yangtze valley as well as in Manchuria, raises 
the very question of the political wisdom of a state 
policy of aiding or abetting, overtly br covertly, a 
national boycott against the Japanese. The Chinese 
Government will have to weigh in the balance the 
relative values of particular state ends, one of which 
was so strongly urged by the late leader of Chinese 
Nationalism, Dr. Sun Yat-sen, when he said: " It 
will be absolutely necessary for us to borrow foreign 
capital." 15 

Two facts, however, would seem to have justified 
this intrusion of the subject of economic non-cooper- 
ation and even discrimination into this study, both 
of which are germane to the inquiry as to what are 
China's alternative means looking toward a solution 
of the issue of the Kwantung lease. The one is the 
status of such methods of self-help in international 
law. The other is the contemporary Japanese feel- 
ing as to the potentialities involved in their invo- 
cation. 

"San Min Ckul, p. 443. (Price trans.) 



224 DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 

As to the first factor, it is quite evident that, in 
the present stage of development of international 
law, there are practically no obstacles of a legal 
character to restrict their use. 16 These are political 
means, not proscribed by international law, in fact, 
even beyond that borderland of international law in 
which are the subjects of retorsion and reprisal, 
actually explainable, in an ordinary case, as being 
within the legitimate competence of a state to deal 
with " domestic questions ". The moment one seeks 
to apply such known principles of law as have been 
developed to the subject of boycott, for example, one 
is confronted with problems, not the least of which 
is that of defining particular types of boycotts and 
evaluating the degree of government connection with 
them. The boycott is today an international out- 
law. 17 

The second fact, equally important here, is that 
the potentialities of a Chinese boycott and non- 
cooperation in economic and financial matters di- 
rected against Japanese enterprise are keenly ap- 
preciated in Japan. The Chinese people, abetted by 
their government at times, have already given some 
evidence of the fact that, as used by the Chinese, 

16 The reader may here be referred to the indecisiveness and dis- 
agreement in any half dozen recognized works in international law. 

17 In such a situation, of course, the provisions for severance of 
trade and financial relations with a recalcitrant state, contained hi 
Article 16 of the Covenant of the League of Nations, have no applica- 
tion. These situations should not be confused. (Of: Buell, R. L. 
International Relations, pp. 596 ff. (R. ed., 1929.) (Of. Problems of 
the Pacific, 1929, p. 232.) 



DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 225 

the boycott is potentially as much to he feared as 
open hostility. So vital has this subject become for 
Japan in her relations with China that a statement 
from Mr. M. Odagiri, director of the Yohohama Spe- 
cie Bank, made at the Kyoto Conference of the In- 
stitute of Pacific Relations in 1929, may be given to 
support the assertion as to Japanese feelings on this 
subject: 18 

" One of the most important questions demanding careful 
study by the members of this Institute is the effect upon 
friendly international relations and commercial intercourse, 
arising from the application of the boycott as a weapon to 
compel acceptance of a national viewpoint. .... 

" In view of these facts, it would seem that the continued 
application of the boycott as an instrument to settle inter- 
national disputes is not only highly provocative and tinjust in 
tiie light of accepted principles of international intercourse 
between friendly peoples, but, if war is to be condemned as 
an instrument of national policy, so also must the boycott 
be outlawed. . . . ." 

The Chinese people used the boycott against 
American trade and financial interests in 1905, in 
protest against the exclusion laws, and in recent 
years have used it effectively against the British at 
Hong Kong and Canton, as well as, more conspicu- 

18 Problems of the Pacific, 1929, pp. 377, 379. Several round table 
discussions at the Kyoto Conference, which appears to be the first 
international organization, private in character, which has discussed 
this question with reference to Eastern Aria, presented occasions for 
Japanese statements opposing the boycott. Certain questions, per- 
taining to the relation of the boycott to contemporary international 
law, were raised by the writer at that Conference. (Rei. Problems 
of the Pacific, 1929, p. 



226 DIPLOMATIC KEQOTIATIOBT AND MEANS OF SOLUTION 

ously, against the Japanese in 1915 and later. Local 
boycotts have occurred, though without far-reaching 
significance, in Manchuria. Economic non-coopera- 
tion, otherwise manifested than by boycotts, is today 
evident in Sino-Japanese relations in Manchuria. 
Japanese capital is not being sought by the Mukden 
Chinese authorities for construction of railways in 
Manchuria, and there is today obvious discrimina- 
tion, whatever may be its effectiveness, against the 
South Manchuria Eailway Company. The point 
here emphasized is, however, that, whatever their 
wisdom, such weapons of passive resistance as boy- 
cotts and refusals to encourage capital investment 
are potentially feared by thinMhg Japanese, and 
are, to repeat, evidently not proscribed by present- 
day international law. 19 

Do these measures of political action, which, in 
fact, may become influential even when not openly 
supported by the Chinese Government, furnish China 
with alternative means for seeking a solution of the 

19 No attempt has been made here to describe the economics of 
boycott. A large body of economists, German, French, English and 
American, agrees that the boycott is frequently a boomerang, injur- 
ing the state and people who seek to resort to it even more than the 
state against whom it, is directed. Among such economists, who 
opposed the plan for an economic boycott of Germany following the 
World War, were W. H. Dawson, Charles Gide and Yves Guyot. 
(ftef. Friedman, E. M. International Commerce and Reconstruction, 
pp. 100-137.), The effectiveness of the boycott as a political or 
diplomatic device, depends, in a particular set of circumstances, on 
the economic interdependence of the two states between whom the 
boycott is made effective. A careful study of the history of particular 
anti-foreign boycotts in China would, perhaps, compel qualified con- 
clusions as to their general effectiveness. 



DIPLOMATIC NEGOTIATION AND MEANS OF SOLUTION 227 

question of the Kwantung lease? This is not a new 
question among thinking Chinese. Nor would such 
opinions as have been expressed here come to them 
as at all novel. The sole reason for the discussion 
here *has been to raise the question as to whether the 
issue, which may well be regarded as favorable to 
Japan, if purely juristic factors as to legality of 
treaties be considered, is, nevertheless, one with ref- 
erence to which the Chinese Government is without 
political means of solution. 

Diplomacy is, admittedly, a selfish business. Each 
state may be expected to safeguard its own interests. 
Each may be depended upon to seek its own ends as 
of primary importance. Until, however, those state 
aims are viewed in a longer perspective than, with 
respect to the Kwantung lease, they are at the pres- 
ent time, the issue itself will continue to crop up as 
an embarrassing problem of practical politics be- 
tween China and Japan. The spirit of compromise, 
of a willingness to seek a solution on the basis of a 
quid pro quo has never yet been brought to bear on 
the question, or, for that matter, on that of the South 
Manchuria Railway. It would seem, then, premature 
to conclude that such a solution is impossible. 



17 



APPENDIX A 

OFFICIAL TEXTS OF THE EXCHANGE OF NOTES OF 

MABCH 10/14, 1923, BETWEEN* THE CHINESE 

AND JAPANESE GOVERNMENTS 

Author's Note. No official English versions of 
the exchange of notes between the Chinese and Jap- 
anese Governments, concerning the request of China 
for termination of the period of the lease of Kwan- 
tnng and the reply of Japan, occurring during March 
10/14, 1923, have previously been published in an 
authorized official version. The texts given below 
are the Japanese official versions which have been 
given to the author by courtesy of the Japanese Em- 
bassy, Washington, D. C. 

NOTE FEOM THE CHINESE CHARGES D'AFFAIRES IN TOKYO 

CONCERNING THE SINO- JAPANESE TREATIES AND 

NOTES OP 1915 

CHINESE LEGATION, 

TOKYO, March 10, 1923. 
Monsieur le Mimstre, 

I have the honour to transmit the following to Your Ex- 
cellency under instructions from my Government under date 
of March 4, 1923. . 

In view of the friendly relations existing between Japan and 
China and of the fact that the nations of the world are mak- 
ing peace and are upholding the principles of justice, it is 
appropriate that Japan and China should endeavour to culti- 



TEXTS OF THE EXCHANGE OF NOTES OF 1915 229 

vate increased cordiality with a view to promoting the world's 
peace by safeguarding the peace of the Far Bast In this 
connection it may be stated that the greatest obstacle in the 
way of cordial and friendly relations between Japan and China 
lies in the existence of the Sino-Japanese Treaties and Notes 
of May 25, 1915. At that time, the Chinese Government, 
after signing these treaties, issued a statement declaring that 
although China had been constrained to comply with the terms 
of the Japanese ultimatum, die disclaimed responsibility in 
case the treaty rights of other Powers were violated by these 
Sino-Japanese Treaties. Subsequently, at the Paris Peace 
Conference, the Chinese Delegation proposed the abrogation 
of the Treaties and the Notes exchanged between China and 
Japan, and the Chairman of the Conference, in reply, recog- 
nized the importance of the question. The proposal was re- 
newed by tiie Chinese Delegates at the Washington Conference, 
the following being given as reasons therefor: Firstly, no 
quid pro quo was given for the concessions; secondly, the 
Treaties and Notes are in violation of treaties between China 
and other Powers; thirdly, the Treaties 'and Notes are incon- 
sistent with the principles relating to China adopted by the 
Washington Conference; and fourthly, the Treaties and Notes 
have given rise to frequent misunderstandings between Japan 
and China. The Japanese Delegation, attaching importance to 
the Chinese proposition, declared that Japan would renounce 
her preferential rights regarding loans for the construction of 
railways in South Manchuria and Eastern Inner Mongolia and 
also regarding, loans to be secured on taxes in those regions, 
as well as her preferential right concerning the engagement 
by . China of Japanese advisers and instructors on political, 
financial, military and police matters in South Manchuria; 
and further that Japan would withdraw reservations with 
regard to Group V of the original proposals of the Japanese 
Government, However, the Chinese Delegates, after taking 
note of the claims given up by Japan and the reservations 



230. TEXTS OP THE EXCHANGE OF NOTES OP 1915 

withdrawn by her, were not yet satisfied in other respects 
and reaffirmed that the Treaties and Notes should be abrogated 
in their entirety, and declared that China reserved the right 
to seek a solution of the matter on appropriate occasions in 
future. This reservation of the Chinese Delegation was duly 
noted by the delegates of other Powers, formally announced 
to the Conference in plenary session by the Chairman, and 
placed on the records of the Conference. 

The Treaties and Notes of 1915 have been consistently 
condemned by public opinion in China, and it was based on 
the wishes of the people that the Chinese Government brought 
forward at Paris and Washington proposals for the abrogation 
of the agreements in question. The Chinese Parliament in 
ordinary session in January, 1923, passed a resolution declar- 
ing the Sino-Japanese Treaties and Notes of 1915. null and 
void, and the Senate called on the Government to act accord- 
ingly. The foregoing facts are enough to show that the opinion 
of the Chinese people on the question has been unanimous 
throughout. The expiration of the term of the lease of Port 
Arthur and Dairen is near at hand, and the Chinese Govern- 
ment consider that the time is now ripe for improving 
Sino-Japanese relations, and declare that the Sino-Japanese 
Treaties and Notes of May 25, 1915, should forthwith be 
abrogated, except those clauses concerning which settlement 
has already been reached or regarding which the Japanese 
Government have either waived their claims, or withdrawn 
their reservations. The Japanese Government is hereby re- 
quested to appoint a day on which to discuss questions inci- 
dental to the restoration of Port Arthur and Dairen or 
consequent upon the abrogation of the Treaties and Notes in 
question. The Chinese Government firmly believe that the 
Government and people of Japan, realizing the importance 
of Sino-Japanese friendship, will comply with the above- 
mentioned desire of the whole Chinese people, and thereby 
remove entirely the obstacle which has stood in the way of 



TEXTS OF THE EXCHANGE OF NOTES OF 1915 231 

Sino-Japanese friendship and cordiality in recent years, to the 
end that real friendship may he promoted between the peoples 
of Japan and China and that the peace of the Far East may 
he further strengthened, which would accrue not only to the 
happiness of the two nations hut to the welfare of the world 
at large. 

The Chinese Foreign Office, in presenting to Tour Ex- 
cellency this note, a copy of which was simultaneously trans- 
mitted to His Imperial Majesty's Minister in Peking, beg that 
you will he good enough to make a reply thereto. 

I avail myself of this occasion, etc. 

LIAO EN-TAO, 

Chinese ChargS d* Affaires. 

NOTE OF THE JAPANESE GOVERNMENT IN REPLY TO THE 
CHINESE EHQTJEST FOR ABOLITION OF THE SINO- 
JAPANESE TREATIES AND NOTES OF 1915 

Maich 14, 1923. 

Note. With reference to the note of Mr. Liao, the Chinese 
Char g 6 tf Affaires in Tokyo (the contents of which was made 
public on the llth instant), Count TJchida, th Foreign Minis- 
ter, asked the Chargb ff Affaires to come to the Foreign Office 
and handed to him the following reply at 10 o'clock^ Wednes- 
day morning. On the same day a copy of the same reply will 
be transmitted to the Waichiaopu by Mr. Obata, Japanese 
Minister to Peking. 

I have the honor to acknowledge the receipt of your note of 
the 10th instant, in which under instructions from Peking, 
you were good enough to communicate to me the decision of 
your Government respecting the abrogation of the Sino- 
Japanese Treaties and Notes of May 25, 1915. After quoting 
the statement of your Government* published immediately on 
the conclusion of the said treaties, the statement of the Chinese 



232 TEXTS OF THE EXCHANGE OF NOTES OF 1915 

Delegation at the Paris Peace Conference, and the contentions 
advanced by the Chinese Delegation at the Washington Con- 
ference, your note concludes that the said treaties and notes 
should now be cancelled in lolo, except those stipulations and 
reservations contained therein which have already been ad- 
justed or which the Japanese Government have already re- 
nounced or withdrawn. 

The Japanese Government are unable to conceal from them- 
selves a sense of surprise and regret .at the communication 
under acknowledgment. 

The treaties concluded and notes exchanged in 1915 were 
formally signed by Japanese and Chinese representatives who 
were properly invested with full powers by their respective 
Governments, the treaties having been, moreover, duly ratified 
by the respective heads of state. The views of the Japanese 
Government concerning these agreements were declared by 
their delegates at the Washington Conference. 

The attempt on the part of your Government to abrogate, 
of its own accord, treaties and notes which are perfectly valid 
will not only fail to contribute to the advancement of friend- 
ship between our two countries, but should be regarded as 
contrary to the accepted principles of international inter- 
course. This Government, accordingly, cannot in any way 
lend themselves to the line of action now contemplated by your 
Government. 

The Japanese Government have always had near their heart 
the promotion of cordial relations between our two nations and 
they trust you will agree that their solicitude in that direction 
has been abundantly proved in their dealings with the Chinese 
Government by repeated acts of goodwill. 

Furthermore, the Japanese Government have recently con- 
cluded new arrangements with China on certain matters stipu- 
lated in the said treaties and notes and have also declared 
their decision to waive the rights secured to them tinder vari- 
ous other clauses in the instruments in question and to with- 



TEXTS OF THE EXCHANGE OP NOTES OP 1915 233 

draw certain reservations made in them. In this situation, 
they feel compelled to declare that they find absolutely nothing 
in the treaties and notes which is susceptible of further 
modification. 

It therefore seems to the Japanese Government that there 
is no occasion for entertaining in any way the proposals of 
your Government respecting the discussion of questions in- 
cidental to the restoration of Port Arthur and Dairen or 
consequent upon the abrogation of the said treaties. 

I avail myself of this opportunity, etc. 

COUNT TToHEDA, 

Minister for Foreign Affairs. 



BIBLIOQBAPHY 
A. OFFICIAL AND DOOUMENTAET SOUECBS 

CHINA 

The Chino-Japanese Negotiations. Chinese official statements with 
documents, treaties and annexes, pertaining to the negotiations 
of 1915. 

Yueh Chang Hui Yao (Collection of Treaties, Regulations, etc.) 
2 vols. (In Chinese) Foreign Intercourse Office, Mukden, 1927. 

Kung Pao (Official Gazette), FSngtien Province. Mukden. 

JAPAN 

Ministere des affaires Strangeres. Recueil des traites et conventions 
conclus entre 1'empire du Japon et les puissances Strangeres. 
2 vols. Imprimerie Imperiale, 1918. (One volume gives the Japa- 
nese and Chinese texts; the other, the foreign language texts, 
usually in French.) 

Kwampo (Official Gazette). Tokyo. (Contains the Japanese gov- 
ernment ordinances relating to the Kwantung leased territory 
. and the South Manchuria Railway Company.) 

A Brief Sketch of the Kwantung Government. Published by the 
Kwantung Government. Dairen, 1926. 

The Kwantung Government: its functions and works. Published by 
the Kwantung Government. Port Arthur, 1929. 

GREAT BRITAIN 

Parliamentary Papers by Command. London. H. M. Stationery 
Office. 

China, No. 1 (1898). Correspondence respecting the Affairs of 
China. 

China, No. 2 (1899). Correspondence between Her Majesty's 
Government and the Russian Government with regard to 
Their Respective Railway Interests in China. 

China, No. 1 (1899). Correspondence respecting the Affairs of 
China. 

China, No. 3 (1900). Correspondence respecting the Insurrec- 
tionary Movement in China. 

' . 236 . : . 



236 BIBLIOGBAPHY 

China, No. 2 (1904). Correspondence respecting the Russian 

Occupation of Manchuria and Newchwang. 
Parliamentary Debates. (C) Fourth Series, 1903. 

UNITED STATES 

Consular Reports. 1903-04. 

Foreign Relations of the United States. (Annual record of for- 
eign relations, cited here for the years 1899 and following.) 
Conference on the Limitation of Armament. (Washington, 
Nov. 12, 1921-Feb. 6, 1922) Washington, 1922. 



MacMurray, J. V. A. Treaties and Agreements with and concerning 
China. 1894-1919. 2 vols. Carnegie Endowment for Interna- 
tional Peace, Washington, 1921. (Oxford University Press, New 
York.) 

Manchuria Treaties and Agreements. Carnegie Endowment for 
International Peace, Washington, 1921. 

Young, C. Walter. The International Relations of Manchuria, a 
digest and analysis of treaties, agreements, and negotiations con- 
cerning the Three Eastern Provinces of China. Chicago, 1929. 

The Sino-Japanese Negotiations of 1915. Carnegie Endowment for 
International Peace, Washington, 1921. 

The China Year Book. (Unofficial annual) Edited by H. G. W. Wood- 
head; published by the Peking and Tientsin Times, Tientsin, 
until 1930; after 1930, published by the North China Daily News, 
Shanghai. 

The Japan Year Book. (Unofficial annual) Tokyo. 



B. iKTEBisrATioisrAL LAW MATERIALS 

(1) BOOKS 

Bhintschli, J. K. Droit international codified French translation. 4th 

edition, Paris, 1886. 
Brierly, J. L. The Law of Nations, an introduction to the interna- 

tional law of peace. Oxford, 1928. 
Buell, R. L. International Relations. Revised edition, New York, 

1929. 
Cobbett, Pitt Cases and Opinions on International Law. 2 vols. 

3rd edition, London, 1909. 



BEBLIOGBAPHY 237 

Crandall, Samuel B. Treaties, their making and enforcement. New 

York, 1904. 
Despagnet, F. Cours de droit international public. 4th edition, 

Paris, 1910. 

Edmunds, S. E. The Lawless Law of Nations. Washington, 1925. 
Fauchille, P. Traite* de droit international public. Paris, 1921-25. 
Fenwick, C. G. International Law. New York, 1924. 
Friedman, E. M. International Commerce and Reconstruction. New 

York, 1920. 
Grard, L. Des cessions deguisees de territoire en droit international. 

Nancy, 1903. 

Grotius. De Jwre Belli ac Pacts. 
Hall, W. E. A Treatise on International Law.. 7th edition, by 

A. Pearce Higginson, Oxford, 1917. 

Hershey, A. S. The Essentials of International Public Law. New 
York, 1912. 

, The International Law and Diplomacy of the Russo-Japanese 

War. New York, 1906. 
Hyde, C. C. International Law, chiefly as interpreted and applied by 

the United States. 2 vols. Boston, 1922. 

Jellinek, G. Die Lehre von den Staatenverbindungen. Wien, 1882. 
Keeton, G. W. The Development of Extraterritoriality in China. 

2 vols. London and New York, 1928. 

Lauterpacht, H. Private Law Sources and Analogies of Interna- 
tional Law. London, 1927. 

Lawrence, T. J. A Handbook of International Law. 10th edition by 
P. H. Winfield, London, 1925. 

, Principles of International Law. 3rd edition revised, Boston, 

1906. . 

, War and Neutrality in the Far East. 2nd edition, London, 1904. 

de Louter. Le droit international public positif. 2* vols. Oxford, 1920. 
Margalith, A. M. The International Mandates. Baltimore, 1930. 
Mattern, J. Concepts of State, Sovereignty and International Law, 
with special reference to the juristic conception of the state. 
Baltimore, 1928. 

M&ignhac. TYaite* de droit public international. Paris, 1905-07. 
Moore, J. B. Digest of International Law. 8 vols. Washington, Gov- 
ernment Printing Office, 1906. 

Nys, E. Le droit international. 3 vols. Bruxelles, 1912. 
Oppenheim, L. International Law, a treatise. 2 vols. 4th edition by 
Arnold D. MoNair, London, New York, 1928, 



238 BIBLIOGRAPHY 

, Ibidem. 1st edition, 1905-06; 2nd edition, 1912; 3rd edition, 

1920-21. 
Perrinjaquet, J. Les cessions temporaires des territoire. Bordeaux, 

1904. 

Phfllipson, C. International Law and the Great War. London, 1915. 
Rivier, A. Principes du droit des gens. 2 vols. Paris, 1896. 
Scott, J. B. Cases on International Law. St. Paid, 1922. 
Smith, F. E. (Earl of Birkenhead) and Sibley, N. W. International 

Law as Interpreted during the Russo-Japanese War. 2nd edi- 
tion, London, 1907. 

Smith, F. E. (Earl of Birkenhead). International Law. London, 1900. 
Stowell, E. C. International Law, a restatement of principles. New 

York, 1931. 
Takahashi, S. International Law Applied to the Russo-Japanese 

War. London, 1908. 

Ullmann, E. von. Das Volkerrecht. 2nd edition, Tiibingen, 1908. 
United States Naval War College Lectures: International Law Situ- 
ations. (Annual Series, 1895 and following here referred to.) 

(Vide: Wilson, G. G.) 
Van Maanen-Eelmer, E. The Mandate System in Relation to Africa 

and the Pacific MEHTI^ST 
Vattel. Le droit des gens. Carnegie Institution edition, Washington, 

1916. 

Westiake, John. International Law. 2 vols. Cambridge, 1910. 
Willoughby, W. W. The Fundamental Concepts of Public Law. New 

York, 1924. 

, The Ethical Basis of Political Authority. New York, 1928, 

, An Examination of the Nature of the State. New York, 1911 

edition. 

Wilson, G. G. Handbook of International Law. St. Paul, 1910. 
- , Naval War College Lectures: International Law Situations. 

(1902, 1907, 1912.) 

, and Tucker, G. F. International Law. 7th edition, Chicago, 1917. 
Wright, Quincy. Mandates under the League of Nations. Chicago, 

1930. 

0. MATERIALS ON MAETCSTJBIA 
(1) BOOKS 

Asakawa, JL The Russo-Japanese Conflict. Boston and New York, 

1904, 
Bau, M. J. The Foreign Relations of China. 1st edition, New York, 

1921. 



BIBLIOGRAPHY 239 

Clyde, P. H. International Rivalries in Manchuria: 1689-1922. 
Columbua, Ohio, 1926. 

Dennett, Tyler. Roosevelt and the Russo-Japanese War. Garden 
City, N. Y., 1926. 

- - , Americans in Eastern Asia. New York, 1922. 

Dillon, E. J. The Eclipse of Russia. New York, 1918. 

Harrison, E. J. Peace or War East of Baikal? Yokohama, 1910. 

Hornbeck, 8. K. Contemporary Politics in the Far East. New York, 
1918. 

Hosie, A. Manchuria, its people, resources and recent history. 2nd 
edition, London, 1904. 

Hsia, Ching-lin. Studies in Chinese Diplomatic History, Shanghai^ 
1926. 

Ichihftshi, Y. The Washington Conference and After. Stanford Uni- 
versity, California, 1928. 

Joseph, P. Foreign Diplomacy in China: 1894-1900. London, 1928. 

Lawton, L. Empires of the Far East. 2 vole. London, 1912. 

Moehizuki, K. Civil Administration in the Kwantung Government. 
Tokyo, 1910. 

Reinseh, P. S. An American Diplomat in China. Garden City, N. Y., 
1922. 

Romanoff, B. A. Russia in Manchuria: 1892-1906. (In Russian.) 
Leningrad, 1928. 

Baron Rosen. Forty Years of Diplomacy. 2 vols. New York, 1922. 

Tyau, M. T. Z. The Legal Obligations Arising out of Treaty Rela- 
tions between China and Other States. Shanghai, 1917. 

Weale, Putnam. (Bertram Lennox-Simpson) Manchu and Muscovite. 
London, 1904. 

Whigham, H. J. Manchuria and Korea. New York, 1904. 

Count Witte, The Memoirs of Count Witte. Translated from the 
original Russian by Abraham Yarmolinsky. Garden City, N. Y., 
1921. 

Willoughby, W. W. Foreign Rights and Interests in China. 2 vols. 
Revised edition, Baltimore, 1927. 

v China at the Conference, a report Baltimore, 1922. 

Yang, Leon. Les territoires a bail en Chine. Paris, 1929. 

Young, C. Walter. The International Relations of Manchuria, a 
digest and analysis of treaties, agreements, and negotiations con- 
cerning the Three Eastern Provinces of China. Chicago, 1929. 
, Japan's Special Position in Manchuria. Baltimore, 1931. 

, Japanese Jurisdiction in the South Manchuria, Railway Areas. 

Baltimore, 1981. 
18 



240 BIBUOGBAPHY 

D. COMPABATIVB AND MISCELLANEOUS MATERIALS 

Bau, M. J. Modern Democracy in China. Shanghai, 1924. 
Dillon, E. J. The Peace Conference. London (undated). 
Gallagher, Patrick. America's Aims and Asia's Aspirations. New 

York, 1920. 

Ireland, AJIeyne. The New Korea. New York, 1926. 
Johnston, Sir Reginald. Lion and Dragon in Northern China. 1910. 
Ker, W. P. Chinese under British Rule: Hong Kong, Weihaiwei 

and Malaya. (Mimeographed data paper, Kyoto Conference, 

Institute of Pacific Relations, 1929.) 
Lansing, Robert. The Peace Negotiations, a personal narrative. 

Boston and New York, 1921. 
Machiavelli. The Prince. Marriott translation, London and New 

York, 1908. 
Millard, T. F. F. Testimony before the U. S. Senate Committee on 

Foreign Relations (Shantung Question). Senate Documents, 

Vol. 10, 66th Cong., 1st Sess., 1919. 
Mohr, F. W. Handbuch fur das Schutzgebiet Kiaotschou. Tsingtao, 

1911. 
Pohl, Otto. Die Cberlassung von Kiaotschou seitens Chinas an das 

Deutsche Reich. Leipzig, 1908. 
Takekoshi, Yosaburo. Japanese Rule in Formosa. Translated by 

George Braithwaite from the original Japanese. London, 1907. 
Treitschke. Politics. 1916 edition. 
Vinacke, Harold M. Modern Constitutional Development in China. 

Princeton, 1920. 
Weihaiwei. The Rendition of Weihaiwei. Treaty Series, No. 50, 

London, 1930. 
Wood, G. Z. The Shantung Question. New York, 1922. 

E. AETICLES AND PAMPHLETS 

Asakawa, K. "Japan in Manchuria/' The Yale Review, August, 

November, 1908. Reprinted in pamphlet form. 
Briefly, J. L. "Some Considerations as to Obsolescence of Treaties." 

Transactions of the Grotius Society, Vol. 11. London, 1926. 
Bullington, John P. " International Treaties and the Clause ' Rebus 

Sic Sfcantibus/" University: of Pennsylvania Law Review, Vol. 

76. 1927-28. 



BIBLIOGRAPHY 241 

Heaton, Paul. "The Jurisdiction of American Courts in China." 
Chinese Social and Political Science Review, Vol. 12, No. 1 
(January), 1928. 

Kao, Yin-t'ang. " The Lease Conventions in China." Chinese Social 
and Political Science Review, Vol. 12, No. 4 (October), 1928. 

Keeton, G. W. "The Revision Clause in Certain Chinese Treaties." 
The British Year Book of International Law, 1929. 

McNair, A. D. "So-called State Servitudes." British Year Book of 
International Law, 1925. 

de Martens, F. " The Portsmouth Peace Conference." North Ameri- 
can Review, Vol. 181 (November), 1905. 

Perrinjaquet, J. "Des annexions dguisees de territoires." Revue 
Gen&raU de Droit International Public, Vol. 16, 1909. (Cf. 
Ibidem, Vol. 15, 1908, 174.) 

de Pouvoizville, A. "Les fictions intemationales en Extr&ne- 
Orient." Revue Generate de Droit International Public, VoL 6, 
1899. 

Problems of the Pacific, 1929. Chicago, 1930. (Contains several arti- 
cles on Manchuria.) 

Quigley, H. S. "Legal Phases of the Shantung Question." Minne- 
sota Law Review, April, 1922. (Reprint.) 

Williams, Sir John F. "The Permanence of Treaties." American 
Journal o] International Law, Vol. 22 (January), 1928. 

Wright, Quincy. "The Sovereignty of the Mandates." American 
Journal of International Law, Vol. 17, 1923. 

Young, C. Walter. " Sino-Japanese Interests and Issues in Man- 
churia." Pacific Affairs, December, 1928. 

, "The Russian Advance into Manchuria." Chinese Students' 

Monthly, Vol. 20, No. 7 (May), 1925. 

F. PERIODICALS AISD NBWSPAPBBS 

No special purpose would be served here by recapitulating all the 
periodicals and newspapers cited in the text. Those listed below 
have been drawn upon most extensively. 

(1) PERIODICALS 

The China Weekly Review. Shanghai. Formerly Mittarcfs Review 

and Weekly Review of China. (American.) 
The Far Eastern Review. Shanghai. Monthly. (American.) 
The Japan Weekly Chronicle. Kobe, Japan. Weekly edition of the 

Japan Chronicle. (British.) 



242 BIBLIOGRAPHY 

The North China Herald. Shanghai. Weekly edition of the North 
China Daily News. (British.) 

The Manchuria Daily News, Monthly Supplement. Dairen. (Japa- 
nese.) 

(2) NEWSPAPERS 

Manchuria Daily News (Japanese-edited in the English language) 
Dairen; North China Daily New* (British-edited), Shanghai; 
Peking and Tientsin Times (British-edited) Tientsin; Peking 
Leader (American-owned during the period for which used; now 
a Chinese-owned publication), Peipung; Japan Advertiser 
(American-edited), Tokyo; Japan Chronicle (British-edited), 
Kobe; Osaka Mainichi (Japanese-edited in the English language), 
Osaka; London Times; New York Times. 



INDEX 



Aaland Islands question, 122 
Administrative rights in the 
Kwantung leased territory; 
vide Kwantung; vide Extra- 
territoriality 
Alexeieff, Vice Admiral, 34, 36, 

36,41 

Arbitration of Manchurian ques- 
tions, 216-217 

Asakawa, K., cited, 32. 62, 68, 184 
A-naf.fmfl.-n concept of the state 
and the principle of rebus sic 
stantibus, 191 

Bahia Honda, United States lease 

of, 101, 123 
Barclay, Sir Thomas, 92, 93. 149, 

on international responsibility 

in leased territories 
Bau, M. J., cited, 24, 45, 108, 114, 

131, 170, 171 

Birkenhead, Earl of, cited, 47, 142 
Bluntschli, cited, 190 
Bosnia, vide Extraterritoriality in 

Kwantung lease 
Boycott, Chinese utilization of 

the, 224 ff.; Japanese attitude 

toward, 224 ff. 

Brierly, J. L., cited, 142, 193, 199 
Bullington, John P., cited, 189, 

194, 197, 199, 200, 203 
Bynkershoek, cited, 194 

Chinchow, and Sino-Russian lease 
convention (May 7, 1898), 21; 
special status of, previous to 
Russo-Japanese war, 21-23; re- 
moval of Chinese officials from. 
56, 60; relation of, to civil and 
military authority of Russia, 
58; Japanese assumption 6f au- 
thority over, 60 

Chinese Eastern Railway, strate- 
gic relation of, to Russian posi- 
tion at Port Arthur, 29; Rus- 
sian claim of right to patrol 35 

Chinese Regiment," at Wei- 
haiwei,65 



Chinese residents of Kwantung, 
criminal trial of, 55-58; Japa- 
nese jurisdiction over, 60-66; 
anomolous position of, 63; Jap- 
anese Imperial Ordinances gov- 
erning, 62 ; and military service, 
64-65 

Ch'ing, Prince, 40 

Chosen, governance of, 67, 69 

"City of Derby." case of, 72-73 

Clark, Grover, cited, 169 

Coastwise shipping laws of Japan, 
controversy over, 70-73 

Cobbett, Pitt, cited, 141 

Coimperiurn, vide Condominium 

Colonial status of Kwantung 
province, vide Constitutional 
law 

Candorwmum, international po- 
litical lease characterized as 
form of 131, 132-134, 136 

Conger, U. S. Minister to Peking, 
76, 78, 79, 80 

Constitutional law, position of 
Kwantung leased territory 
from point of view of Japanese, 
66-73; applied with less rigor 
in colonies and administered 
areas than in Japan proper, 
69-70 

Corn Islands, United States lease 
of, 103, 104 

Court jurisdiction, vide Extra- 
territoriality; vide Chinese res- 
idents in Kwantung 

CrandaU, S. B., cited, 194 

Customs Revenues, right of Rus- 
sia to collect, in Kwantung, 34 

Cyprus, vide Estraterritoriality 
in Kwantung lease 

Dairen, included in lease of Liao- 
tung area to Russia, 18: im- 
mediate cause for Russia's de- 
mand of China for the lease of, 
27-28; purpose of Russia in cre- 
ation of, 32; Chinese maritime 
customs in, during Russian 



244 



INDEX 



regime, 32-34; included in 
treaty of Portsmouth, 60; Chi- 
nese war vessels permitted to 
make use of harbor at, 54-55; 
and the application of Japa- 
nese coastwise shipping laws, 
70-73; Japanese troops in- 
creased at, during 1915 negotia- 
tions, 174 

Dalny, vide Dairen 

Dennett, Tyler, cited, 27 

Despagnet, cited, 140 

Dillon, E. J., cited, 27, 28, 155 

Disguised cessions, international 
political leases described as, 
131, 132; French views of 
China, leases as, 136 ff.; British 
views of China leases as, 140- 
142; American views of China 
leases as, 142-143; China leases 
as, criticized, 1433.; Japanese 
repudiation of concept of, 146 

Dutch Mining case, 122 

Edmunds, Sterling E., cited, 142- 

143 

Emmern v. Sietas and Co., 75 
Escarra, J., cited, 112-113 
Extraterritoriality in Kwantung 
lease, not extended to foreign- 
ers, 74; Russian attitude 
toward, 75 ff.; Japanese atti- 
tude toward, 80 ff.; and case 
of U. S. v. A. W. Smith, 81-81 ; 
opinion of U. S. Court Com- 
missioner Lurton as to, 83-84; 
opinion of Judge M. D. Purdy 
astOj 86-87, 91; compared with 
Bosnia and Herzegovina after 
occupation by Austria-Hun- 
93, 96; compared with 
,96 

Jity in leased terri- 
tories, not claimed by U. S. 
Department of State, 76; John 
Hay on, 78; attitude of the 
powers toward consularjuris- 
diction and, 80; Quincy Wright 
on, 93; T. J. Lawrence on, 95 

Fauchffle, cited, 140 
FSngtfen province, 166 



Penwick, C. G., cited, 103, 123, 
143, 151, 188, 189, 195, 199, 211, 
212 

Force majeure, 173 ff. 

Foreigners, status of, in Kwan- 
tung, vide Extraterritoriality 

Formosa, vide Taiwan 

Gallagher, Patrick, cited, 156 
G&ard, L., cited, 138-139 
Grotius, cited, 109, 193 
Guantanamo, United States lease 
of, 101, 123 

Hall, W. E., cited, 24, 25, 131, 178, 
189. 190 

Hanihara, cited, 162 

Harrison, E. J., cited, 75 

Hart, Sir Robert, 32, 33 

Hay, John, cited 40, 76, 78 

Hayashi, Viscount, 68 

Heaton, Paul, cited, 91 

Heilungkiang province, 37 

Hershey, Amos S., cited, 38-39, 
142 

Herzegovina, vide Extraterritor- 
iality in Kwantung lease 

Holland, cited, 116 

Hooper v. The United States, 
case of, 199 

Hornbeck, S. K., cited, 170 

Hsia, Ching-lin, 24, 25, 45, 95, 96, 
107, 110, 114, 131, 178-179, 202 

Hyde, C. C., cited, 13, 123, 211 

Ichihaihi, Y., cited, 161, 173 

Imperial Lieutenancy of the Far 
East, creation of, 36 

International law and ethics, 209- 
210 

International Servitudes, doctrine 
of, 122-123; non-applicability of 
doctrine of, to international 
political leases, 123. Vide Ser- 
vitudes 

Ireland, Alleyne, cited, 67 

Japanese Imperial . Ordinances 
governing civil and criminal 
cases involving Chinese resi- 
dents of Kwantung leased terri- 
tory, 62 



INDEX 



245 



Japanese rights in Kwantung 
leased territory, nature of, 
50 ff.; treaty basis of, 60 fit. 

Jellinek, cited, 190 t 

Johnston, Sir Reginald, cited, 65- 
66, 67 

Jurisdictional Rights, sovereignty 
and, 10 ff.; tne conventional 
basis for the Russian, in Kwan- 
tung, 18 ff.; Sino-Russian lease 
convention (March 27, 1898) 
and, 18; actual exercise of, by 
Russia in Kwantung, 27 ff.; 
treaty basis and nature of Jap- 
anese, in Kwantung, 50 ff.; 
transfer of, from Russia to 
Japan, 50; of Japan over Chi- 
nese residents in Kwantung, 



Keeton, G. W., cited, 57, 74, 193, 

197, 198 

Ker, W. P., cited, 65 
Kiadchow, German lease of 
(1898), 5-6; recovery of, 10; 
refuge of six Russian warships 
at, 47; position of Chinese resi- 
dents in, during German r6- 
gime. 64; Kwantung lease com- 
pared to that of, 98 
Kmn-Changchun railway, loan 

agreement for the, 166 
Kinn province, 37, 166 
Komura, Baron, and treaty of 

Peking (1905), 51 
Koo, V. K. Wellington, cited, 214 
Korea, vide Chosen 
Korostovetz, commissioner, 35 
Kowloon, lease extension of, to 

Great Britain (1898), 5 
Kwantung leased territory, un- 
limited authority of lessee in, 
6-7; T. J. Lawrence on, 8-9; 
Japan's renewal of lease of, 10, 
15; China's right to recover, 10; 
Jurisdictional or conferred 
rights of Japan in, 12; legal 
positions of China and Japan 
in, 13; application of the juris- 
tic doctrine of sovereignty to, 
14; conventional basis for Rus- 
sian Jurisdictional rights in, 
18ff.; Sino-Russian lease con- 



vention (March 27, 1898) and, 
18; general administrative 
rights obtained by Russia in, 
19 ff.; provision for Chinchow 
in Sino-Russian agreement 
(May 7, 1898) pertaining to, 
21: views of jurists and pub- 
licists as to character of lease 
of, 25-27; actual exercise of 
control by Russia over, 27 ff.; 
purpose of transfer to Russia 
of, 29; T. J. Lawrence on Rus- 
sian position in (1898-1904), 
30 ; Russian activities in, 30-31 ; 
attitude of Russia towards es- 
tablishment of Chinese Mari- 
time Customs in, 32-34; after 
Boxer rising, 36; the Imperial 
Lieutenancy of the Far East 
and, 37-38; Japanese regula- 
tions for, 41; actual status of, 
during Russo-Japanese war, 
42 ff.; and treaty of Porte- 
mouth, 45; and treaty of Pek- 
ing (1905), 45; views of writers 
as to "quasi-neutralized" or 
"neutralized" status of, 45 ff.; 
basis of Japanese rights in, 
50fk; non-assignability of, to 
third state, 51; Russian politi- 
cal authority practically unim- 
paired in, during period of 
lease, 52-53; geographical ex- 
tent of, 53; * neutral zone " in, 
53; minor exceptions to the ex- 
clusive rights of jurisdiction of 
Japan over, 54 ff.; Chinese 
criminal cases in, 55-58; re- 
moval of Chinese officials 
from (after 1908), 56; Japanese 
jurisdiction over Chinese resi- 
dents of, 60-66; anomalous 
position of Chinese residents 
of, 63; no extradition treaty 
made applicable to, 63, 04; 
Government Ordinance No. 15, 
(1918) pertaining to aliens in, 
63; military service and tjie 
Chinese residents of, 6*35; 
position of, in Japanese Em- 
pire, 66 ff.; first organic act of 
government of. 60 ; foreigners 
subject to trial in local Japa- 



246 



INDEX 



nese courts in, 74; opinion of 
Commissioner Lurton as to ex- 
traterritorial privileges in, 83- 
84; meaning of the reservation 
of sovereignty to China in case 
of, 91-92; real status in interna- 
tional law of, 131 ff.; as inter- 
national political lease, 151- 
152; legality of Japanese occu- 
pation of (after 1923), 154 ff.; 
application of rebus sic stanti- 
bus to the, 201 ff.; equitable so- 
lution of the issue of the exten- 
sion of lease of, 212 ff. 

Laband, 140 

Lamsdorff. Count, 22 

Lansing, Robert, cited, 155 

Lauterpacht, H., cited, 10, 94, 103, 
109-110, 124, 125 ff., 147, 151, 197, 
199, 201, 219 

Lawrence, T. J., on the interna- 
tional legal status of the Kwan- 
tung lease, 7, 8-9; on the Rus- 
sian position in Kwantung 
(1898-1904) 29-30, 46; on the 
international legal status of 
Manchuria during the Russo- 
Japanese war, 41-42; on extra- 
territoriality in leased terri- 
tories, 95; on applicability of 
private law analogies to leased 
territories, 111, 129; on use of 
term "usufruct," 117, 118-119; 
on " 'disguised cessions/' 141 ; on 
law and facts, 144, 145; on 
binding force of treaties, 176- 
177; on doctrine of rebus sic 
8tantibu&, 188; on ethics and 
international law, 209 

League of Nations, and Sino-Jap- 
anese relations, 218-219 

Lease conventions, nature of, 
100 ff.; rule of construction of, 
125 ff.; "restrictive interpreta- 
tion'' of, 125 ff.;. attitude of 
Chinese Government toward, 
147 

Leased territories in China, reser- 
vation of sovereignty over, to 
China, 5 ff.; retrocession of, 10; 
actual practice in, based on 



principles of international law, 
94; differences evident in the, 
99-100; non-applicability of pri- 
vate law analogies to, 105 ff.; 
George G. Wilson on, 112; 
" servitudes " not analogous to, 
114 ff.; described simply as in- 
ternational political leases, 132; 
as transfers of jurisdictional au- 
thority, 181 

Lessor and Lessee, in interna- 
tional law, T. J. Lawrence on, 
8-9 

Liang, Ch'inch'ao, cited, 170 

Ljaotung, vide Kwantung 

Liaotung peninsula, blockade of, 
44-45 

Li-Lobanoff treaty of alliance of 
1896 (Sino-Russian treaty), 19 

Liszt, F. von ? 140 

Louter, de, cited, 191 

Lurton, Commissioner, on extra- 
territorial privileges in Kwan- 
tung leased ' territory, 83-84, 
90-91 

MacMurray, J. V. A., 5, passim 

Manchuria, Tsarist policy in, 27; 
Russian occupation of, 34; war 
status of, during Russo-Japa- 
nese war, 38 ff . ; attitude of Chi- 
nese Government toward bel- 
ligerency of Russia and Japan 
in, 40-41; excluded from the 
application of China's procla- 
mation of neutrality during 
Russo-Japanese war, 40; atti- 
tude of Chinese Government 
toward 1915 agreements rela- 
tive to, 165 ff. 

Mandated territories, question of 
status of, 104 

Margalith, A. M- cited, 104 

Martens, F. de, cited, 40 

Mattern, J., cited 134 

McCormick, R. S., Ambassador, 
79 

McNair, A. D., cited, 120, 121, 123 

M&ignhao, cited, 140 

Millard, T. F. F., cited, 169 

MochizukLK., cited, o2, 69 

Mohr, F. fr,, cited, 64 

Moore, J. B., cited, 143, 176 



INDEX 



247 



Neutrality, Manchuria excluded 
from China's proclamation of, 
during Russo-Japanese war, 
40ff. 

Nicaragua, United States lease of, 
for construction of canal, 103, 
104 

North Atlantic Fisheries Arbi- 
tration, 122 

Nys, cited, 140 

Occupied territory, international 

political lease described as, 132, 

134-135 
Odagiri, M., expresses Japanese 

attitude toward application of 

the boycott^ 225 
Okano. Dr., cited, 68 
Oppenheim, H. B., cited, 109 
Oppenheim, L., cited, 15, 96, 149, 

169, 176, 178, 188, 189, 193, 200- 

201 

Panama Canal Zone, Kwantung 
leased territory compared to 
United States lease of, 101-103; 
Taft agreement (1904) concern- 
ing, 102 

Paris Peace Conference (1919), 
155, 156 

Peking, treaty of, (1905), 18, 45, 
50,51 

Permanent Court of Interna- 
tional Justice and Manchurian 
questions, 217 

Perrinjaquet* X, cited, 116, 138, 
139 

Phillipson, C., cited, 141 

Pohl, Otto, cited, 64 

Pokotiloff, 33 

Port Arthur, included in lease of 
Liaotung area to Russia, 18; 
Chinese vessels permitted to 
make use of, 19, 54-55 ; strategic 
entrenchment of Russia at, 27 ; 
immediate cause for Russia's 
demand of China for the lease 
of, 27-281; Chinese Eastern 
Railway and, 29; capture of, by 
Japan, 45; unfortified to-day, 
48-49, 55; in iarealy of Ports- 
mouth, 60 



Portsmouth, treaty of, 45, 50, 51 
Pourvoirville, A. de, cited, 137 
Pri-Amur province, 43, 44 
Private Law, non-applicability of, 
to international political lease, 
106 ff.; controversy over anal- 
ogies of international law and, 
108 ff.; controversy between 
positivists and the natural law 
school as to applicability of, 
f09; T. J. Lawrence, on appli- 
cability of, 111-112; criticism 
of application of, to political 
leases, 117-118 

Purdy, Judge Milton D., cited, 
72, 82 ff., gives judgment of 
court in case of U. S. v. A. W. 
Smith, 86-87 

Quigley, H. S., cited, 155; on 
force majeure, 177 

Rebus sio stontibu*, principle of, 
185 ff.; views of publicists ac- 
cepting principle of, 187 ff.; 
Austinian concept of the state 
and the principle of, 191; views 
of publicists denying the prin- 
ciple of, 192 ff . ; views of Ameri- 
can publicists on doctrine of, 
194 ; attempted application 
of, 196-197; principle of, not as 
yet a part of international law, 
199; applied to the Kwantung 
leased territory, 201ff.; Aus- 
trian justification, for the an- 
nexation of Bosnia and Herze- 
govina by means of, 206 

Reinsch, Paul S., cited, 171, 173- 
174 

Rivier, cited, 190 

Romanoff, B. A,, cited, 35 

Root. Elihu, cited, 122 

Russian control of Kwantung 
(1898-1904), 27 ff.; and military 
occupation, 34; practically unr 
impaired during period of lease, 
52-53 

Russo-Japanese war, effect of, on 
status of the leased territory, 
38ff. 

Ryojun, 18, vide Port Arthur 



248 



INDEX 



Servitudes, and leased territories 
distinguished, 23-25; interna- 
tional leaseholds described as, 
112 ff. - true, in private law con- 
trasted with servitudes in inter- 
national law, 120-122 

Shantung, China's claim for re- 
covery of, 156-156 

Sibley, N. W., 47 

Sino-Japanese treaty and notes 
PW5), legality of, 153 ff.; atti- 
tude of Chinese Government 
to, 154 ff.; reasons for Chinese 
desire to abrogate the, 157-158; 
Chinese note to Japanese Gov- 
ernment urging abrogation of, 
158-159, 228-231; Japanese as^ 
sumption of validity of, 161 ff.; 
uncontested validity of, by 
third state, 163-164; possible 
basis for the invalidity of the, 
pertaining to South Manchuria 
and Inner Mongolia, 167 ff 
resolution presented by a T. 
Wang at the Washington Con- 
ference with respect to the, 213- 
214; political solution of issue 
of, 214; diplomacy and the, 
215; Japanese reply to the 
Chinese request for abolition 
of the, 231-233 

Smith, P. E., vide Birkenhead 

Snow, Freeman, cited, 194 

South Manchuria Railway, and 
Sino-Japanese relations, 218: 
unique status of, 218; discrimi- 
nation against, 226 

Sovereignty, mandated territories 
under the League of Nations 
and, 3; defined from the inter- 
national legal viewpoint, 4; dis- 
tinction between the ultimate 

ri ?*, to < |?P, ose of territory 
and the actual exercise of jur- 
isdiction within a given terri- 
tory, 4, 10, 11; as ultimate and 
supreme legal competence, 13: 
meaning of the reservation of, 
to China in the Kwantung 
l^ase, 91^, 97, 148-149 ^ 
otatus of iLwantung, in interna- 
tional law, 97 ff.; supposed 
analogies to, 97-99; German 



lease of Kiaochow compared 
to, 98; non-analogous situa- 
tions compared to, 101-104; 
false analogy of , with leases in 
private law, 105 ff.; real, in in- 
ternational law, 131 ff.; legality 
of the Sino-Japanese treaty 
(1915) and the international 
legal, 153 ff.; discussed at 
Washington conference, 158 
Stowell, E. C., cited, 103, 143, 194- 

195 

Suehiro, Dr., cited, 161 
Sun, Dr. Yat-sen, cited, 223 

Taiwan, governance of, 67, 69 

Takahashi, S., cited, 23, 39-40, 41, 
47,60,136,220 

Takekoshi, Y 7 cited, 67 

Talien, 18, vide Dairen 

Taxation, vide Extraterritori- 
ality; vide Chinese residents of 
Kwantung 

Taylor, Eli, 83 

Thucydides, cited ? 183 

Togo, Vice Admiral, declaration 
of blockade of the Liaotung 
peninsula, 44-45 

Treitschke, cited, 190 

Tripartite intervention of Russia, 
Germany and France, and the 
restoration of Liaotung to 
China, 27 

Tsingtao, Japanese garrison in- 
creased at, during 1915 negotia- 
tions, 174 

" Twenty-one Demands," 153 
162,182,183,215 ^ 

Tyau, M. T. Z., cited, 24, 45, 105- 
106,108,114,131,202,203 

Ullmann cited, 191 

United States Department of 
State, attitude of, in matter of 
jurisdiction over American na- 
tionals in Kwantung leased 
territory, 76-78 

U. S. v. A. W. Smith, case of, 74, 
75, 81-91; judgment of court in 
case of, 86^7; political ques- 
tion involved in case of. 86-87; 
opinion of court criticized by 
W. W. Willoughby, 88^9; va- 



INDEX 



249 



lidity of 1915 treaty and notes 
accepted by Judge Purdy, in 
case of, 164 

Van Dyne, Solicitor, and the 
policy of the American Gov- 
ernment in matter of jurisdic- 
tion over American nationals 
in the Kwantung leased terri- 
tory, 76-77 

Vattel, cited, 177, 194 

Vinacke, Harold M., cited, 170 

Wang, C. T,, cited, 166-157, 212 ff. 

Washington conference, 156 ff.; 
160, 161 ff.; resolution presented 
by C. T. Wang at the. 213-214 

Weale, B. L. Putnam (Lennox- 
Simpson), cited, 23, 33, 60 

Weihaiwei, lease of, to Great 
Britain, 5; retrocession of, 10: 
" Chinese Regiment " recruited 
by British at, 65; status of, 
under British Government, 66- 
67 

Westlake, John, cited, 46, 93, 96, 
110, 115, 140, 141, 177, 180, 190, 
192.193,205 

Whkham, H. J., cited, 31, 32, 33 

Williams, Sir John F., cited, 189, 
193 

Willoughby, W. W., on the idea 
of Sovereignty among interna- 
tional conceptions, 4; on sov- 
ereignty as ultimate and su- 
preme legal competence, 13-14; 
on the decision of Judge Purdy 
in case of U. S. v. A. W. Smith, 



8S-89; on sovereignty and the 
delegation of a state's powers 
to other states, 90, 179480; 
cited, 134, 156; on the consti- 
tutional law of a particular gov- 
ernment and the validity of 
international agreements, 171- 
172; cited, 190 

Wilson and Tucker, cited, 211 
Wilson, G. G., on leased terri- 
tories in China, 112, 151, 177; 
on doctrine of rebus sic stanti- 



Wimbledon case, 122, 126 
Witte, Count, cited, 27, 28 
Wood, a Zay, cited, 156 
Wright Quincy, on mandates and 
the League of Nations, 3; on 
the distinction between sover- 
eignty and the exercise of jur- 
isdictional rights, 11, 146; on 
governments in leased terri- 
tories. 12; on the position of 
the Powers as to the China 
leases, 93; on the responsibility 
of the lessee in the leased terri- 
tories, 94; cited, 103, 104, 145 

Yang, Lion, cited, 17, 93, 96, 100, 
113-114, 124. 133 135, 137-138, 
139, 140, 148, 150, 151-152, 207 

Young, C. Walter, references to 
writings by, 180, 219 

Yuan Shih-k'ai, 51, 169, 170, 173, 
175, 215 , 

Zumoto, cited, 174